Hogan Lovells BSTL SC
With top-tier knowledge of local law, Mexican business culture, a wide variety of industries, and an international outlook, Hogan Lovells BSTL is uniquely suited to advising both Mexican and international clients in all their legal and business needs both on the ground in Mexico and around the world. As the Mexican market expands and reforms continue to change the business landscape, we offer our clients well-informed legal counsel that will help them take advantage of this unprecedented growth in opportunities.Show more
Arbitration & ADR
The Supreme Court recently issued a decision on the personal liability of the president of an arbitral tribunal. The court's previous decision in Greenworld made clear that, in the Netherlands, it is possible under exceptional circumstances to hold arbitrators personally liable on the basis of the Civil Code. In its recent decision, the court clarified the scope of application of the Greenworld standard.
Many loans involve the transfer of assets to a collateral or payment-source trust, especially (but not exclusively) when dealing with cash-generating assets, such as long-term contracts or receivables. A 2016 federal collegiate circuit court decision could jeopardise these structures in the context of insolvency proceedings. However, new judicial guidance was recently issued to reinforce traditional considerations regarding trusts.
Andrés Manuel López Obrador was elected president on 1 July 2018 and will take office on 1 December 2018. Not only did López Obrador obtain more than 50% of the votes (approximately 30 million), his party and coalition also won an absolute majority in both the House of Representatives and the Senate. This is the first time in 20 years that a president will govern with this level of power. But what will this mean for the banking sector?
The funds of some participants of the Interbank Electronic Payments System (SPEI) were recently affected by a series of unprecedented cyberattacks. The Mexican Central Bank revealed that approximately $15 million (Ps300 million) had been involved in diverse irregular transfers, subject to investigation. The cybercriminals had identified a flaw in the system that permitted receivers of SPEI transfers to withdraw cash almost immediately after receiving the transfer so that the money could not be traced.
The president recently enacted the Financial Technology Institutions Law. The Senate had unanimously approved the bill on the law in December 2017 and sent it to Congress, which made no changes. The law seeks to build a regulatory framework that will encourage the development of innovative financial services, increase the level of competition and financial inclusion and place Mexico at the forefront of the industry.
There were a number of court precedents in 2017 concerning financial transactions. For example, a recent non-binding collegiate court precedent broadened the scope and source of information that judges should use to analyse and determine the existence of usury, while another validated judges' authority to use the annual interest rate published by companies that engage in vehicle financing. Further, a binding Supreme Court precedent dealt with the maturity date of promissory notes.
The Ministry of Finance and Public Credit recently circulated a substantially amended draft of the Financial Technology Bill, which has been renamed the Financial Technology Institutions (FTIs) Law. The law aims to regulate the financial services provided by FTIs – including those which are bound to specific regulations and offered or rendered through innovative means – as well as the organisation of such institutions and their operations.
National Banking and Securities Commission amends general rules for credit institutions to curb identity theftMexico | 06 October 2017
In recent years, Mexico has been rated as having one of the highest rates of credit card fraud in the world. The National Banking and Securities Commission recently published the Resolutions that Modify the General Rules Applicable to Credit Institutions, which require credit institutions to verify information and documentation filed by users and customers with different government bodies in order to assure the identity of each prospective customer.
The recently published draft Financial Technology Law will regulate the organisation, operation, function and authorisation of companies that offer alternative means of access to finance and investment, the issuance and management of electronic payment funds and the exchange of virtual assets or cryptocurrencies. Among other things, the initative aims to take advantage of the opportunity to expand the financial market to include segments not covered by traditional banking institutions.
Competition & Antitrust
It is difficult to predict how the antitrust trends and policies that have evolved over the past decade will play out under the Trump administration. The president has already made some picks for antitrust leadership that suggest – consistent with his overall pro-business platform – that antitrust enforcement will decrease in some areas. Thus, the cartel space will be an interesting one to watch.
With the departure of now former Chair Edith Ramirez in early February 2017, among the most discussed vacancies in the new administration is the post of permanent chair of the Federal Trade Commission (FTC). According to reports, one leading candidate is Acting Chair Maureen Ohlhausen, whose selection could have significant implications for FTC policy areas, particularly with respect to disgorgement remedies in antitrust cases.
Although tolling agreements are increasingly common in the energy industry, parties that have or may have an interest in acquiring the other party to the agreement must be careful to avoid assuming beneficial ownership of the target before complying with the Hart-Scott-Rodino reporting requirements if Hart-Scott-Rodino notification is required. Failure to do so may result in the tolling agreement constituting evidence of gun jumping and the acquiring person being subject to significant penalties.
The Federal Trade Commission released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Section 7A of the Clayton Act, known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as well as for Section 8 of the act. The new filing thresholds for Hart-Scott-Rodino notification will become effective 30 days after publication in the Federal Register, while the revisions to Section 8 will become effective immediately on publication in the register.
The US Antitrust Division of the Department of Justice and the Federal Trade Commission recently issued guidance for human resources (HR) professionals on steps to avoid antitrust violations. The guidelines – which cover 'no-poaching' agreements, agreements to fix wages or other terms of employment and the exchange of HR information – reveal the agencies' determination to scrutinise the employment arena and their intention to use, if necessary, their most powerful enforcement tools.
The Second Circuit Court of Appeals recently overturned a federal district court judgment in a class action antitrust lawsuit against two Chinese companies accused of conspiring to fix the price and output of vitamin C sold into the United States. The court held that the companies were compelled to fix the price and output by Chinese law, and therefore their conduct was outside the antitrust jurisdiction of the US federal courts.
The UK Financial Conduct Authority (FCA) recently published a discussion paper to gauge market participants' views on how the future development of distributed ledger technology (DLT) should be regulated by the FCA in FCA-regulated markets. As industry efforts to use DLT continue, the FCA expects that in the second half of 2017 and into 2018 there will be more movement from the 'proof of concept' stage to 'real-world' deployments.
Five years on from the G20's commitment to implement measures to increase transparency and reduce risk in the derivative markets, there have been significant changes to regulations affecting the derivatives markets in the European Union. However, many new rules are still not yet in force and some, such as the margin requirements under the European Market Infrastructure Regulation, will not be fully implemented until 2020.
The European Commission recently published the final delegated regulation on the margin requirements for derivative trades not cleared by a central counterparty. Under the European Market and Infrastructure Regulation, certain counterparties will need to exchange both initial and variation margin in respect of derivative trades not cleared by a central counterparty. These rules will have far-reaching consequences for derivatives documentation.
Environment & Climate Change
In recent years, Mexico has seen the significant deterioration of its forest resources, making it one of the 10 worst countries in terms of deforestation. To combat this issue, the New General Law for Sustainable Forest Development was recently published in the Federal Official Gazette. The law is an attempt to focus Mexico's forestry regulation on better management of resources, while also safeguarding human rights and social involvement.
The Ministry of Environment and Natural Resources recently published a decree granting administrative benefits for the issuance of new concession titles for exploiting national waters to persons that hold a title which expired after January 1 2004. Notably, the decree allows for the issuance of new concession titles even if the zone or specific aquifer from which the original concession title was authorised to extract water is now considered a restricted or banned zone or aquifer.
The National Waters Commission recently submitted to the Federal Regulatory Betterment Commission its draft revision of the Mexican official standard which establishes the maximum permissible levels of pollutants in wastewaters discharged into national waters or properties. The draft aims to modernise the standard by including additional terms and definitions, pollutants and parameters regarding wastewater discharges into federal waters, as well as new sampling and reporting frequency obligations.
The National Agency for Industrial Safety and the Protection of the Environment in the Hydrocarbons Sector recently filed a draft emergency Mexican official standard before the Federal Regulatory Betterment Commission. The draft establishes the criteria for classifying types of special and hazardous waste derived from the hydrocarbons sector, determines which types of waste are subject to a waste management plan and details the procedures for formulating such a plan.
Following the expansion of shale oil extraction projects and the discovery of unconventional hydrocarbon deposits, the National Agency for Industrial Safety and the Protection of the Environment in the Hydrocarbons Sector recently commenced a public consultation process to enact applicable water protection guidelines. The draft guidelines provide a glimpse of the authorities' preliminary approach to shale oil projects with regard to water resources and environmental protection.
ASEA issues environmental and safety guidelines for ground transportation of oil and petrochemicals through pipelinesMexico | 29 May 2017
As part of its expansion of operational safety and environmental protection guidelines and administrative provisions, the National Agency for Industrial Safety and the Protection of the Environment in the Hydrocarbons Sector turned its attention to oil, gas and petrochemical pipeline transportation activities. Recently issued guidelines complement the environmental legal framework so that both environmental and personal safety are guaranteed during the lifetime of a pipeline project.
ASEA issues guidelines to identify root cause of environmental and safety incidents in hydrocarbons sectorMexico | 20 February 2017
In light of its concerns regarding environmental and operational accidents arising from hydrocarbons projects, the National Agency for Industrial Safety and the Protection of the Environment in the Hydrocarbons Sector recently published the Guidelines to Carry Out the Root Cause Investigation for Incidents and Accidents. The guidelines aim to identify the root cause of an incident and determine the maintenance and preventive mechanisms that must be implemented in order to prevent such events in future.
Two important instruments were recently published which have generated a number of new environmental reporting obligations for companies involved in the hydrocarbons sector. In addition to these obligations, parties that cause an incident or spill during the execution of a project must undertake all applicable measures and actions to contain, mitigate and repair the environmental damage and contamination caused.
The Mexican hydrocarbons industry is undergoing several regulatory changes, including the introduction of new guidelines which establish insurance requirements to ensure environmental accountability. The guidelines provide specific coverage requirements depending on the type of activity conducted, which should be a step forward in effectively controlling and responding to environmental damage resulting from natural and anthropogenic causes.
In May 2016 new guidelines were published to address the significant environmental risks posed by the hydrocarbons industry and provide corresponding mitigation measures. It is hoped that the guidelines – which are binding on participants in the hydrocarbons sector – will encourage more environmentally accountable mechanisms and mitigate the types of environmental harm that the hydrocarbons industry has already caused.
Over the past few years significant progress has been made in the establishment of a national climate change framework. Most recently, the government has promoted a series of instruments and measures to meet the goals set out in the General Law for Climate Change and the commitments made at the United Nations Climate Change Conference in Paris.
Three judicial precedents were recently published concerning the interpretation and application of the Federal Law for Environmental Responsibility. These precedents address issues relating to the statute of limitations for filing suit for environmental responsibility, the right of civil associations to file such suits and the ability of the legislature to modify the fundamental right of access to justice under the law.
Mexico's recent structural energy reform has resulted in the creation of the Agency for Safety, Energy and Environment (ASEA), a specialised, decentralised administrative body of the Secretariat of Environmental and Natural Resources, dedicated to the environmental requirements of the hydrocarbons sector. The ASEA internal regulations recently came into effect, marking the formal start of ASEA's activities.
The Maritime Spills Law seeks to control and prevent the pollution or alteration of the sea caused by spillages deposited in Mexican maritime zones and outlines the events that will be considered 'spills or dumping'. These events will either be authorised or penalised under the law. The law will come into force on July 16 2014.
The Federal Environmental Liability Law has entered into force. The law is based on constitutional amendments which expressly establish direct responsibility for parties that cause damage and degradation to the environment and natural resources of Mexico. Environmental liability is a new concept under the Mexican legal system, and is separate from civil, administrative and criminal liability.
The National Climate Change Strategy was recently published in the Federal Official Gazette. Providing guidelines and policies to address the effects of climate change in Mexico, it also seeks to promote an inclusive long-term environmental policy focused on green growth by aligning goals, institutions, programmes and resources for such purposes for the next 40 years.
The draft bill for the Federal Act for Environmental Responsibility, currently under consideration by the House of Representatives, seeks to regulate liability for harm to the environment and mandate restoration and compensation for such harm. The draft act also includes alternative dispute settlement options and sets forth the general rules and requirements to file civil actions.
The Mexican Stock Exchange Market has launched a sustainability index. The index allows investors to identify companies in terms of their commitment to sustainable causes and compliance with environmental laws. It also provides an incentive for companies to engage in sustainable practices or else risk losing value and investment capital.
Two draft official standards - on waste for special treatment and hazardous waste - are expected to be approved in the coming months and will create new obligations in respect of waste management programmes. Generators of waste and other parties involved in waste handling would be well advised to start work on their management programmes.
Mexico is moving forward on climate change. The Senate has debated and approved the General Climate Change Bill which would create - among other things - a national climate change policy and an independent climate change authority. It sets out significant provisions on adaptation and mitigation, and on accessing federal and international funds for carbon capture and greenhouse gas reduction.
A constitutional amendment allowing class or representative actions on environmental matters represents a big step forward for Mexico's environmental law. The change will inevitably lead to increased exposure for individuals and entities in performing activities and securing approvals under federal environmental legislation.
Healthcare & Life Sciences
The Italian Competition Authority (AGCM) recently launched an investigation into the online sale of dietary supplements in Italy based on claims of non-compliance with the relevant regulatory provisions, resulting in misleading actions. The AGCM's role in this context is to ensure that consumers obtain accurate information concerning dietary supplements so that they can make informed decisions concerning these products.
After seven years, the Supreme Court finally ended the first product-related class action promoted in Italy relating to a medical device. The decision is noteworthy, despite the small sum awarded, because very few class actions have been declared admissible to date and even fewer cases have been upheld on the merits due to strict admissibility requirements.
The recently elected government administration has publicly announced that it intends to eliminate the private medical insurance currently granted to public officials as part of their benefits. This measure aims to encourage public officials to use state medical services and reduce government expenditure. If the cancellation of this benefit is confirmed, a significant number of officials are likely to seek major medical expenses insurance, which will present an opportunity for various companies in the sector.
A recent amendment to the Insurance Law has mandated medical expenses insurers to offer insurance products that cover risks which can cause disabilities in individuals. The amendment decree also revised the General Law for the Inclusion of Disabled Individuals, which prohibits any type of discrimination against individuals with any type of disability.
The National Commission for the Protection and Defence of Users of Financial Services (CONDUSEF) recently amended the General Provisions for the Registry of Insurance Adhesion Contracts in order to specify which additional documents must be included in the contractual documentation of such contracts and registered before the National Insurance and Bonds Commission and CONDUSEF.
The National Commission for the Protection and Defence of Users of Financial Services (CONDUSEF) recently amended the General Rules on Good Practices, Transparency and Advertising applicable to Insurance Companies. The amendments have added additional documents to the contractual documentation required for insurance adhesion contracts and provided the form on which insurers must include the registry numbers granted by the National Insurance and Bonds Commission and CONDUSEF.
The National Insurance and Bonds Commission recently amended the Sole Provisions on Insurance and Bonds in accordance with its annual obligation to inform insurance and bonds companies of the value of the investment unit that they must consider in calculating their required minimum paid-in capital. Insurance and bonding companies must comply with the required minimum paid-in capital every year.
There has been much speculation around the implications of Brexit and the possible termination of the North American Free Trade Agreement (NAFTA). One of the clear benefits of both NAFTA and the free trade agreement entered into between Mexico and the European Union was the exemption of NAFTA and EU insurers from the foreign investment restriction. However, as this restriction was eliminated in 2014, affiliates of insurers located in NAFTA and EU member states will not be substantially affected.
The National Insurance and Bonds Commission recently added two new articles to the Insurance and Bonding Sole Provisions which set out new surety insurance contract requirements. Contracts must now include, among other things, confirmation that the insurer is authorised to pay the indemnity for damages without prior notice or consent of the policyholder and that the indemnity may be paid as compensation or as a penalty for the damages suffered.
In order to prevent the misuse of customer information, the National Insurance and Bonds Commission recently amended the Insurance and Bonding Sole Provisions with regard to information gathered electronically. Among other things, the amendments require insurers to implement security measures and mechanisms for the transfer, storage and processing of information generated electronically when contracting insurance and bonds and rendering other services to customers.
The National Insurance and Bonds Commission has issued a temporary measure to enable insureds and their beneficiaries to be immediately compensated for damages suffered as a consequence of the recent earthquakes that affected several areas of Mexico. The temporary measure applies to Mexican insurers that have ceded risks to reinsurers and allows them to use funds to meet assumed risks and recover compensation from reinsurers at a later date.
The National Insurance and Bonds Commission recently amended the Sole Provisions on Insurance and Bonds in order to increase legal certainty with regard to the regulatory framework that applies to actuarial, financial and investment functions. These amendments aim to ensure that the commission has the information required to take necessary regulatory action in the event that irregularities are detected and prompt intervention is needed.
Insurance regulator provides 2017 required minimum paid-in capital for insurers and bonding companiesMexico | 20 June 2017
The National Insurance and Bonds Commission recently amended the Sole Provisions on Insurance and Bonds to provide the value of the investment unit that insurers and bonding companies must consider when calculating their required minimum paid-in capital. Insurers and bonding companies must comply with the required minimum paid-in capital each year to ensure that they can meet their financial obligations and responsibilities in the exercise of their activities.
Two years after the Insurance and Bonding Companies Law was enacted, surety insurance is finally starting to take effect in Mexico. In essence, surety insurance is easier to collect and enforce than traditional bonds. The federal government is expected to start requesting surety insurance from its contractors, rather than traditional bonds. This shift in policy will encourage development in the surety insurance market.
The National Commission for the Protection and Defence of Users of Financial Services recently issued the General Provisions for the Registration of Insurance Adhesion Contracts, which regulate the organisation and operation of the Registry of Adhesion Insurance Contracts. Insurers can now comply with their obligation to register the non-negotiable contracts that they offer; failure to do so may result in a fine ranging from $758.31 to $3,791.56.
The Ministry of Finance and Public Credit recently issued a ruling interpreting the requirement to establish special funds under the Insurance and Bonding Companies Law. The ministry has clarified that special funds should be established to support compliance with obligations that stem only from insurance (and not reinsurance) contracts. This will ease some of the sector's concerns, as reinsurance-based contributions would have required insureds to contribute twice as much to the special funds.
The new Solvency II accounting and reporting standards deviate dramatically from the prior reporting standards, which makes it difficult for insurers to issue financial statements that can be appropriately compared with similar statements for 2015. In light of this, the National Insurance and Bonding Commission recently issued an amendment to the Sole Regulations on Insurance and Bonding, acknowledging that it is impractical for regulated entities to issue comparative financial statements during 2016.
The Ministry of Environment and Natural Resources recently issued guidelines setting out the minimum insurance requirements for companies undertaking oil and natural gas exploration and production, processing and refining. All regulated entities engaged in such activities must secure civil liability, environmental damage and – if applicable – well control insurance. The insured amounts vary depending on the activities to be undertaken, but are substantive.
In April 2016 the National Insurance and Bonds Commission amended the Sole Provisions on Insurance and Bonds to include HR Ratings de México, SA de CV as an entity authorised to issue credit ratings to foreign reinsurers. HR Ratings is the first Latin-American rating company authorised to issue such credit ratings, which are necessary for foreign reinsurers working with Mexican insurance and bonding companies.
The Ministry of Finance and Public Credit recently issued general provisions which specify the types of loan that insurance and surety companies may issue to third parties. In doing so, the ministry aims to democratise access to finance, avoid imbalances, promote national economic growth and create another option for debtors to secure credit at competitive rates.
The National Commission for the Protection and Defence of Users of Financial Services (CONDUSEF) has issued general provisions to define certain activities that deviate from good practices with respect to the offer and sale of services that insurance entities provide. CONDUSEF's intention is to strengthen the protection of general public interest.
Given the entry into force of Solvency II requirements in Mexico, the National Insurance and Bonds Commission continues its efforts to streamline internal and external control compliance mechanisms to which insurers are subject. The relevant provisions have been modified to allow regularisation plans and auto-correct programmes to be submitted to the regulator through its website, with the aim of facilitating easier and swifter compliance.
Since 2014, vehicle owners travelling on federal roads have been obliged to obtain liability insurance to cover damage caused to third parties or their property. However, insurers report that car liability insurance has not increased as expected. States are now looking into requiring liability insurance for all cars on the roads in their cities. Mexico City is the first to do so.
The new Insurance and Bonding Law, which implements the Solvency II requirements in Mexico, recently came into effect alongside the new Sole Regulation on Insurance and Bonding. Among other things, insurers must now file periodic regulatory reports using certain forms and templates, which consolidate information that was previously submitted to the regulator through individual reports.
The National Commission for the Defence of the Rights of Financial Services Users has issued rules regarding abusive clauses contained in non-negotiable contracts used by financial institutions, including insurers. The regulator is now empowered to inspect all insurance products and – where it deems necessary – order the use of a product containing an abusive clause to be suspended.
The National Insurance and Bonding Commission has disclosed draft sole rules for comment. One of the changes concerns coverholders appointed by registered foreign reinsurance companies. Under the proposed sole rules, Mexican underwriters will no longer agree to do business with coverholders unless there is evidence that they have been properly registered.
Foreign investment in Mexican insurance companies has traditionally been restricted to 49% of capital stock, with certain exceptions. However, the Foreign Investment Law was recently amended to eliminate the restrictions on participation in insurance and surety companies. Foreign investors can now invest up to 100% in such companies, regardless of the investment's country of origin.
Mexico's recent tax reform may have a substantial impact on insurers, as it limits the deductibility of individuals' insurance premiums. The immediate effect will be numerous cancellations of medical insurance policies and retirement plans, which had previously incentivised long-term savings. Corporations will also face limits on the deductibility of insurance premium payments made as part of employee compensation.
Congress recently passed a financial reform package that substantially affects the sector. Among the changes, insureds will be able to access summary or executory trials for disputes regarding insurance coverage, provided that they first secure approval from the National Commission for the Protection and Defence of the Users of Financial Services.
The Federal Bridges and Highways Law was recently amended to require automobiles that use federal highways to be insured with coverage for any liability for damages and injuries caused to third parties by the motor vehicle. The amended law is expected to expand automobile insurance coverage across the nation, as only a few states in Mexico have compulsory car insurance policies in their local laws.
New internal criteria imposed by the Ministry of Finance and Public Credit are delaying various foreign reinsurers in securing registration or renewal with the Registry of Foreign Reinsurance Companies. While the new criteria are welcome, as they aim to ensure the strength and solvency of the reinsurance market in Mexico, they have nonetheless posed serious problems to many reinsurers.
Congress has passed a new insurance and bonding law. The new law is intended to strengthen the insurance and bonding system according to international best standards and practices, with special regard for corporate control and governance, capitalisation rules, reserve investment and risk management policies, among other things.
As a consequence of new regulatory guidelines, Mexican insurers will face tougher new requirements to assist in anti-money laundering activities. Insurers will need to update their internal 'know your client' policies and systems to ensure that they comply with the new requirements.
The National Insurance and Bonding Commission has issued an amendment to the Uniform Insurance Ruling that will require insurers to ensure that service providers hired to sell insurance products comply with the law. Insurers are now required to request evidence from third-party vendors that they have provided proper training for their employees, and that such employees have received certification from the commission.
The National Insurance and Bonding Commission has amended Section 5.1.24 of the Unified Insurance Ruling related to medical expense insurance. The amendment provides clearer guidelines for insurance companies to follow in regard to their medical expense insurance products. It expressly requires insurance companies to draft policies with clarity and legal certainty for the insured.
A package of amendment to various federal laws has given rise to the possibility of filing class actions against insurance companies. These amendments will have a material impact on the conduct of insurance companies in relation to their clients, not only in their promotion, sale and adjustment of insurance, but also in the assessment of coverage policies, as exposure will be increased significantly.
The Unified Insurance Circular has been amended to require insurance companies to submit statistical information about their activities electronically. The aim of the change is to facilitate delivery and improve the Insurance Commission's access to the information submitted by insurance companies for compliance and surveillance purposes.
In order to undertake reinsurance and rebonding activities in Mexico, foreign reinsurers must demonstrate a satisfactory credit rating and agree to be bound by Mexican law in respect of transactions that are entered into in Mexico or have effects there. However, if the reinsurer is resident in a jurisdiction with which Mexico has a double tax treaty, it must also provide evidence of tax domicile.
It is often said that an insurer's most important 'clients' are not its insureds, but insurance agents - an insurer may offer the best product, but it will not be sold unless the agents like it. Commission is paid in various ways, with some insurers being willing to pay commission in advance. However, Mexican law prevents insurers from paying agents for the sale of products before they are sold and paid for.
The Mexican insurance market is increasingly attractive to underwriters because of its potential for growth. Many non-admitted insurers offer a wide range of products in Mexico through licensed and non-licensed agents, but although the potential revenues are certainly sweet, the consequences may prove sour.
The Circular on Unified Insurance is now in effect. It consolidates the commission's previously issued rules and guidelines on insurance matters, integrating and standardising the relevant terminology, which should make it easier for insurance companies to comply with their obligations. However, various insurance-related decrees are not incorporated into the circular and remain in effect.
The recently enacted Federal Law on Personal Data Protection has prompted many companies to reassess their database management and data-processing activities. However, insurance companies and agents are already subject to sector-specific regulations on the use of information.
A recent Collegiate Federal Court resolution states that where an insurance company requires insureds to obtain medical care from its chosen physicians in a medical assistance network, the insurer can be held jointly liable with the medical professionals. Effective monitoring should be used to ensure that insureds receive a high-quality service. Moreover, indemnity clauses should be included in agreements with physicians.
In a recent decision before the World Intellectual Property Organisation, a panel denied the transfer of a three-letter domain name, even though it identically reproduced a complainant's trademark, because the domain name had been registered years before the complainant acquired trademark rights and the complainant failed to demonstrate that the respondent was aware of those rights.
The Versailles Court of Appeal recently affirmed the Nanterre Court of First Instance's decision in relation to the transfer of three domain names infringing the trademark of a collectivité territoriale (the catch-all term for French communes, departments and regions). The court of appeal reviewed three decisions delivered under SYRELI, an alternative dispute resolution procedure, to resolve domain name disputes under the '.fr' country code extension for France.
The Paris Court of Appeal recently found that, among other things, use of the domain name 'lecomptoirducoton.fr' had resulted in both trademark infringement and unfair competition in relation to the trademark COMPTOIR DES COTONNIERS. According to the court, when a domain name is not identical to a trademark, the likelihood of confusion between the two signs should be assessed. This assessment includes a likelihood of association, which should be evaluated internationally.
The Paris Court of First Instance recently ordered the transfer of a domain name consisting of the name of a person whose identity had been misused, most likely fraudulently. The court noted that, under the Post and Electronic Communications Code, the registration or renewal of a domain name may be refused or the domain name may be cancelled if it likely infringes IP or personality rights, unless the domain name holder has a legitimate interest in the domain name and is acting in good faith.
The Court of Cassation recently provided a useful clarification in relation to unfair competition claims based on domain names. The court stressed that a domain name need not be either distinctive or original for an unfair competition claim to be admissible, but that these are relevant simply when assessing likelihood of confusion.
The Paris Court of Appeal recently ruled that a domain name that was transferred under the Uniform Domain Name Dispute Resolution Policy had to be transferred back to its initial owner due to the absence of trademark infringement. The court stressed that it was insufficient for the allegedly infringing website merely to be accessible in France or the European Union.
The Marseille Commercial Court recently ruled that the sending of letters to the customers of a smartphone creator and seller warning them against possible infringement constituted offers for a fair, reasonable and non-discriminatory licence and was thus not considered unfair competition. The key discussion was not patent infringement, but rather unfair competition due to the sending of letters by a non-exclusive licensee enforcing a standard-essential patent.
Factors to be considered in deciding where first to obtain patent protection when an inventor team comprises members located in one or more jurisdictions other than your own include whether there are first-filing requirements in those countries. If so, it is important to understand whether they apply only to inventions made by national entities or individuals, or more broadly to inventions made in the national territory.
Securitisation & Structured Finance
Trusts are the most commonly used special purpose vehicle (SPV) in Mexico. Most securitisations involve the use of a trust as the SPV. Trusts are also used for secured loans, and collateral or payment source trusts are often used in Mexican financings to segregate collateral from the debtor. In addition, almost all project finance involves transferring assets to a trust in order for such trust to be the payment vehicle of the transaction. However, a recent court decision may have put these structures at risk.
EU Benchmark Regulation: requirements and impact for securitisation and structured finance transactionsEuropean Union | 23 May 2017
The new EU Benchmark Regulation will take effect from January 1 2018 and will be directly applicable to EU firms that are benchmark users, administrators or contributors, without the need for national implementing legislation. As the scope of the regulation is much broader than any existing EU framework, securitisation and structured finance market participants should start to consider the increased controls that this will introduce.
The European Banking Authority recently published a report proposing a three-step approach to the harmonisation of covered bond frameworks in the European Union. The report summarises the functioning of – and developments in – national covered bond frameworks and provides recommendations which the European Commission will consider in the process of furthering the Capital Markets Union project.
Impact of Securities Financing Transactions Regulation on special purpose vehicles in securitisationsEuropean Union | 20 December 2016
As part of the EU shadow banking initiatives, the EU Securities Financing Transactions Regulation recently entered into force. It purports to rectify a lack of transparency in both the securities financing markets and the financial markets by enhancing transparency. It has added to the regulatory burden imposed on orphan special purpose vehicles and the costs of setting up and maintaining a securitisation transaction.
The rules on risk retention in the United States and the European Union do not completely align; therefore, securitisations distributed into both the US and EU markets must be careful to comply with both sets of rules. To the extent that transactions already complying with the EU risk retention rules may need to be modified to address the US rules, the European Union has adopted regulatory technical standards which permit the form of retention to be modified in exceptional circumstances.
The final US risk retention rules will soon apply to asset-backed securities with respect to all asset classes other than residential mortgage-backed securitisations (to which they already apply). In light of this, it is timely to examine the exclusion which applies to certain non-US securitisation transactions and the basic US risk retention requirements. Further, some key issues should be considered when determining whether a proposed transaction falls within the 'foreign-related transaction' safe harbour.
Although the recently enacted EU Market Abuse Regulation has not radically overhauled the EU Market Abuse Directive regime that it replaced, many of the procedural requirements under the directive have been clarified or supplemented. Even where the changes are minimal, the regulation serves as a reminder to securities issuers and other market participants of some practical questions.
The Ministry of the Interior recently issued the Guidelines for the Audiovisual Content Classification of Broadcasting Transmissions and Pay Television and Audio Services. The 2015 guidelines dramatically increased the hours during which a programme or ad can be broadcast depending on its rating, leading to legal disputes to protect child audiences. While the 2018 guidelines maintain the same broadcast times as the 2015 guidelines, they have increased the duration of the parental warning.
Telecomunicaciones de México recently issued a call inviting applicants to compete in the bidding for the Red Troncal project (ie, the National Backbone Network), which has been in the works since the 2013 constitutional telecoms reform. The winning party will enter into a public-private partnership for the design, financing, installation, deployment, operation, strengthening, maintenance and development of the network and the provision of wholesale telecoms services.
The president recently launched the Red Compartida (or Shared Network), which is one of the most important projects being undertaken in the Mexican telecoms sector. The project involves a new mobile broadband network in the 700 MHz band, which will provide wholesale services under a public-private partnership structure between Altán Redes and the government. The project aims to provide mobile broadband coverage to 92.2% of the Mexican population by 2024.
The Federal Institute of Telecommunications recently approved the final programme for the functional separation of Mexico's fixed incumbent companies as a consequence of the asymmetric regulation imposed on the América Movil Group (AMX). However, AMX has informed the Mexican Stock Exchange that it will challenge the approval of the programme and there has been some scepticism as to the results and practical consequences of the separation.
The Federal Institute of Telecommunications recently announced the auction of the 2.5 GHz band. The auction's purpose is to assign the commercial use and exploitation of 120 MHz of the 2,500 to 2,690 MHz band for the provision of wireless services. Four companies and one consortium are interested in formally participating in the auction process, which is expected to be completed by November 2018.
White Collar Crime
When a legal team needs to find the facts behind fraud and corruption allegations in a government investigation, technology can drive substantial new efficiencies. By filtering and evaluating vast amounts of information, artificial intelligence can effectively sort text messages, audio files, emails and other unstructured data into manageable groups; identify potential relationships between parties accused of fraud or corruption; and recognise patterns of frequency or timing, which may support a client's defence.
Compliance officers often report to the legal department or are staffed with qualified lawyers, making it difficult to distinguish when the compliance officer is serving in a legal capacity, rather than a compliance one. However, drawing a clear distinction between these functions, conducting internal investigations under the direction of counsel and making the legal purpose of communications or documents clear will make the best possible record to show that documents should be protected by privilege.
With few Foreign Corrupt Practices Act (FCPA) corruption investigations resolved under the Trump administration's watch, it is too early to weigh up how the administration will affect enforcement or settlements in the long term. On its face, the new FCPA Corporate Enforcement Policy signals a more business-friendly approach by removing the spectre of a monitor in many situations and by committing to a presumption of a declination in certain circumstances.
Companies now have even greater incentives to have strong, meaningful Foreign Corrupt Practices Act compliance programmes. When the deputy attorney general recently announced the new enforcement policy that will guide the US Department of Justice, he made it clear that the government wants to create incentives for companies to police themselves when it comes to bribery and corruption.
DOJ announces one of largest False Claims Act recoveries concerning government small-business programmesUSA | 02 October 2017
Two recent cases before the Department of Justice (DOJ) have sent a signal that the DOJ may become more proactive in combating small-business contracting fraud. These cases underscore the importance of ensuring that small-business eligibility representations are accurate, as the penalties for misrepresentation can be severe.
For energy, mining and resources companies, the cost of corruption – and getting caught – is real. Energy and mining companies, along with other resources companies, remain a major focus of bribery and corruption investigations worldwide. The government wields a potent weapon against bribery and corruption in the form of the Foreign Corrupt Practices Act.
In the past, compliance and remediation in the context of healthcare investigations were typically seen as afterthoughts. However, compliance efforts are now being more closely scrutinised by prosecutors. The Department of Justice recently issued an 11-part series of questions styled as guidance on corporate compliance programmes. Interestingly, it is a series of questions, not a series of answers. Companies are going to have to work the answers out themselves with their compliance departments and counsel.
In recent years, US and Western European military spending has decreased as military spending in other parts of the world has risen. As a result, aerospace, defence and government services companies increasingly rely on sales to foreign governments to grow business revenue and are thus at a more significant risk of investigation for violations of the Foreign Corrupt Practices Act.
To undergo a Foreign Corrupt Practices Act investigation entails significant risk. Since 2008 at least 10 corporations have agreed to pay more than $300 million in penalties to resolve such investigations. Defence costs associated with a global bribery or corruption investigation can also run into the millions before any penalties are assessed. A number of developments that emerged during 2016 will have broad implications for the coming year.
As the Senate prepares to confirm Senator Jeff Sessions as the new attorney general and to consider nominations for other high-level positions in the Justice Department, there are many questions – and few answers – about how the new leadership in the Justice Department will approach the prosecution of white collar crime during the Trump administration.
The Department of Justice (DOJ) recently announced a landmark resolution concerning violations of the Foreign Corrupt Practices Act. The DOJ and the Securities and Exchange Commission entered into a $413 million settlement with one of the world's largest hedge funds. This settlement indicates that the DOJ intends to enforce the act strictly with little regard for the industry involved or the financial consequences.
Since January 2009, the government has recovered more than $30 billion through False Claims Act cases, more than half of which was recovered from cases involving alleged fraud against federal healthcare programmes. False Claims Act cases are now more complex, lucrative and healthcare focused than ever – a far cry from the act's humble beginnings as a solution to the problem of fraudulent sales to the military during the American Civil War.
To understand how the government will regulate companies in the future, it is important to understand the problems it is currently trying to solve. In its efforts to enforce the Foreign Corrupt Practices Act, the US Justice Department faces a particularly difficult problem: how to incentivise companies to volunteer information about their own illegal conduct while retaining its ability to punish those companies for breaking the law.
With the publication of the Yates Memorandum, the Department of Justice has reinforced its focus on seeking accountability from individuals. Employees may thus be at greater risk from corporate investigations, particularly with respect to their work emails and other documents, and company counsel may receive more requests from individual counsel regarding the production of employees' documents.
The Yates Memorandum announced a new US Department of Justice (DOJ) policy that focuses DOJ attorneys on pursuing the individuals responsible for corporate wrongdoing. In considering the practical effects of the new policy, a question arises about the potential for it to increase the pressure on companies to provide legally privileged information to the DOJ in hopes of receiving cooperation credit.
The Department of Justice's (DOJ) Yates Memorandum aims to hold individuals, not just corporations, accountable for corporate misconduct, in response to criticism that it fails to punish executives who precipitate wrongdoing. However, it remains to be seen whether the policy will advance the DOJ's law enforcement interests or hinder them, as there may be unintended consequences for companies, employees and the DOJ itself.
The US Department of Justice recently announced a formal policy that provides for the vigorous prosecution of culpable individuals who are responsible for corporate wrongdoing, which is consistent with shifting trends in prosecution. An increased effort to prosecute high-ranking executives would result in significant changes to how investigations affect companies and how companies respond to investigations.
The recent Supreme Court decision in Kellogg Brown clarifies that the Wartime Suspension of Limitations Act will not toll the statute of limitations for civil claims during times of war or the authorisation of military force. This reverses the trend that had permitted the use of the act in civil False Claims Act matters and protects defendants from indefinite tolling in civil matters.
There are many subtle ways in which a law-abiding citizen can commit a federal felony under US law in a matter of minutes. The pressures of life can put people in situations where they take morally questionable actions that are prohibited by federal criminal law leading to criminal penalties. The average citizen should thus realise how broad US criminal law can be and how it can be applied to him or her.
Although the government has added new players to its line-up, the game seems to be the same in the world of Foreign Corruption Practices Act enforcement, as the Department of Justice (DOJ) and the Securities and Exchange Commission continued to push for strong enforcement in 2014. As in 2013, the DOJ continued to emphasise the importance of corporate compliance and cooperation with investigators.
The Supreme Court has steadily restricted the recovery available to civil litigants for conduct that occurred outside the United States and prosecutors have continued to push for the broad application of criminal laws to extraterritorial conduct, particularly in white collar criminal cases. Courts have only just begun to grapple with how to analyse whether a criminal statute applies extraterritorially.
The application of the fugitive disentitlement doctrine is an important issue that warrants Supreme Court review. It is an issue of fundamental fairness for both non-US citizens and the US Department of Justice. Both sides have reasonable and forceful arguments to make, and the future of the doctrine will have very real consequences for the US government and private citizens around the world.
The Delaware Supreme Court has issued a decision that may affect how US corporations conduct investigations and communicate with their attorneys. The decision adopted the fiduciary exception to attorney-client privilege, which allows shareholders access to a company's privileged communications when there is "good cause" to believe that management may have breached a fiduciary duty to the shareholders.
While companies can breathe a sigh of relief following the District of Columbia Circuit Court's recent unanimous ruling in In Re Kellogg Brown & Root, Inc, overturning the district court's decision in US, ex rel Barko v Halliburton Co, companies should take some precautions to reduce the risk of disclosure of privileged materials generated during internal investigations.
The US District Court for the District of Columbia recently issued an opinion that has the potential to disrupt the manner in which companies conduct compliance investigations, particularly in regulated sectors such as the defence industry. Although there are certain flaws in the court's reasoning, this decision – if widely adopted – could cause significant disruption in existing corporate compliance and investigation programmes.
An archaic World War II statute designed to give the federal government extra time to prosecute crimes during times of war has recently reared its head in the context of False Claims Act qui tam actions for the first time in over 50 years. The dramatic and far-reaching consequences of such a tolling of the limitations period for False Claims Act lawsuits have brought renewed attention to this peculiar statute.
The Foreign Corrupt Practices Act remained a key issue in 2013. The number of cases commenced under the act by the Department of Justice and the Securities and Exchange Commission was slightly above pace from the previous year, providing evidence of the agencies' continued commitment to aggressive pursuit of Foreign Corrupt Practices Act cases.
In December 2013 the Second Circuit issued a key decision that restricts the prosecution of cases where the US government aims to use routine payments within the limitations period to indict offences that should be time barred. In United States v Grimm the government charged three individuals with antitrust conspiracies more than five years after contracts were awarded.
It has been over two years since the US Securities and Exchange Commission (SEC) began operating its whistleblower programme, but substantial questions linger over its effectiveness and transparency. Only four whistleblower awards have been made in the programme's history and the SEC has not disclosed many details about those awards to the public. So has the programme been worth it?
Two New York judges and now a federal jury are making the Financial Institutions Reform Enforcement and Recovery Act required re-reading for banking attorneys. In recent opinions, the judges endorsed the claims filed under the act – a 1989 reform law now being applied by the Department of Justice to the aftermath of the late 2007 and 2008 meltdown in the housing and secondary mortgage market and other financial markets.