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The Internet has become the most sought after means of all communication media, or at least the medium thatallows immediate access to the content of products and ideas on a global scale. Today, it is common for productsand services to be offered to a vast array of countries and regions. As far as trademarks are concerned, once suchare displayed on the Internet, they are available to anyone, which may result in the following consequences,among others: i) the imminent risk that the trademark may not only be imitated or reproduced in other countries,but also registered by third parties; and ii) the additional risk that anyone who advertises through the Internet (andtherefore on a global scale) may violate the rights of third parties who have a superior right to use suchtrademarks in a certain country. While the Internet itself should not change the rules for the protection anddefense of intellectual property rights, such risks should force companies to rethink their business strategies,specifically with respect to international protection of trademarks and other intellectual property rights.
It is very important for companies to understand the minimum requirements with which they must comply whenhiring Mexican or foreign personnel. The minimum rights held by employees working in Mexico are providedfor in Article 123 of the Constitution of the United Mexican States and its regulatory law, the Federal Labor Law(LFT, for its acronym in Spanish), the Social Security Law, which guarantees the right to health, medicalassistance and retirement and pensions for employees, and the National Workers’ Housing Fund law, whichregulates the housing needs of employees. When hiring personnel of Mexican nationality, companies should: (i)ask the potential candidate to complete an employment application in the format used by the company for suchpurposes, which form should request personal information from each candidate such as age, domicile, maritalstatus, etc.; (ii) if the candidate is accepted, execute the corresponding individual employment agreement, whichis the document necessary to evidence the salary and benefits pursuant to which an employee was hired; (iii)register the employee with the Mexican Social Security Institute, the National Workers’ Housing Fund and paythe corresponding fees to each of such organizations. In general terms, the LFT establishes the followingminimum rights for employees hired in Mexico: (i) maximum work schedule of 48 hours per week; (ii) a day of rest with payment of salary and benefits for each six days of work; (iii) a holiday/Christmas bonus each year of atleast 15 days of salary; (iv) an annual vacation period of at least six work days paid after the first year ofemployment and increasing with each year of service; (v) an annual vacation bonus equivalent to at least 25% ofthe employee’s regular salary and payable during the vacation period; and (vi) annual employee profit sharing of10% of the net profits generated by the company and calculated and distributed according to the terms of the LFTand the Income Tax Law. Furthermore, it should be noted that the lack of a written employment agreement,failure to register the employees with the previously indicated institutions or failure to pay the correspondingsocial security payments does not deprive the employee of the rights that arise from the employment relationshipand the referenced laws. Finally, when hiring foreign employees, companies must comply with the samerequirements and proceedings as for Mexican employees. However, in addition to the foregoing, and inaccordance with the Federal Immigration Act (Ley General de Población), foreigners must have a visa to work inMexico from the National Immigration Institute. The National Immigration Institute issues work visas subject tocertain requirements. Furthermore, certain additional special documentation, depending on the particular facts ofthe hiring of the foreigner, is normally recommended.
In the U.S., a mechanic’s lien is a lien on land, buildings and other improvements that generally arises by statestatute and assists to secure payment to those who supply labor and/or materials for construction projects.Mechanic’s liens basically help guarantee payment to contractors and/or subcontractors for labor and/or materialsprovided for land or a building. The concept of a mechanic’s lien, as understood in the U.S., does not exist inMexican law, where the performance of certain formalities and proceedings is always required in order to obtaina security interest in real property and its improvements. To begin with, in Mexico, all improvements constructedon a tract of land form a part thereof, and the legal presumption is that such improvements are owned by theowner of the real property, unless the contrary is proved. The most common mechanisms through which realproperty may be encumbered in Mexico in order to guarantee the performance of third parties obligations are: (i)a Mortgage, which must be formalized before a notary public and recorded with the Public Registry of Property;(ii) a Guaranty Trust, which requires the participation of a trustee institution, the granting via a public instrumentand recording with the Public Registry of Property; and (iii) an attachment following the attainment of ajudgment or a prejudgment attachment ruling issued by a court, which generally requires the commencement ofcollection proceedings supported by an executory document (e.g. a promissory note), or the obtaining of a courtorder requesting the registration of the litigation status, in which case the court may request that plaintiffguarantee the payment of possible damages to defendant. Regarding the option to place a lien on personalproperty, Mexican law establishes two options: (i) the traditional pledge, in which the personal property that isthe subject matter of the guarantee must be delivered to the creditor or made available for the disposition andcontrol of the creditor in accordance with the requirements provided by law; and (ii) the pledge without transferof possession, where the personal property remains in the possession of the debtor or a third party, but at all timesrequires the participation of the creditor, the debtor, and, if applicable, the third party that maintains possession ofthe goods, through the execution of the applicable pledge agreement and, depending on the amount involved,may require ratification before a notary public and recording with the Public Registry of Commerce. While acontractor and/or subcontractor in Mexico may sue for payment due from construction work related to land or abuilding, a mechanic’s lien will not automatically be established on the land or building, regardless of who ownssuch land or building. Therefore,, a contractor in Mexico should carefully explore the economic and commercialsolvency of the party seeking the services, as well as evaluate the possibility of requiring a performance bond orother form of payment guaranty.
The Federal Anti-Corruption Law in Public Procurement was published in the Official Journal of the Federationon June 11, 2012. Its purpose is to establish the liability and sanctions to which individuals and entities ofMexican or foreign nationality would be subject as a result of violations stemming from their participation infederal public procurement projects, as well as those sanctions that should be applied to individuals and entitiesof Mexican nationality for violations in international commercial transactions. Such law became effective onJune 12, 2012 and establishes a procedure to investigate and punish individuals and companies involved in actsof corruption at any level of Mexico’s federal public procurement system, and imposes serious economicsanctions on offenders, including a bar against participation in future federal public procurement processes. It isworth mentioning that if the violation occurs through the use of an intermediary, both the recipient of the benefitand the offender will be punished. It is important for those companies participating in public bids andprocurement proceedings with the federal public administration to prepare or update their internal policies so that their employees, representatives and subcontractors can gain an understanding of the new law, so that its scope isclearly explained, in order to avoid engaging in any acts or activities prohibited by the new law.
