The Eighth Collegiate Court on Civil Matters of the First Circuit recently published non-binding legal opinionnumber I.8º.C.28 C (10a), titled, “Interest in the event of rescission of a purchase and sale agreement. The buyerhas the right to receive payment of interest without the prior need for making a formal judicial demand.” In thislegal opinion, the Collegiate Court held that, unlike penalty interest, which results from an unjustified delay inperformance of an obligation, the obligation to pay interest deriving from rescission of a purchase and saleagreement by the seller is computed as of the time the seller receives the price, without the need for making aformal judicial demand. The court recognized that the benefit of the price by the rescinding seller is the reasonfor the obligation to pay interest to the buyer.
Article 29 Bis of the National Fund for Worker’s Housing (INFONAVIT) Law provides that contracting parties (beneficiaries) and contractors (employers) must report, on a quarterly basis, to the taxing delegation corresponding to the domicile of the employer, certain information with respect to contracts entered into during the referenced quarter. Such information includes: I. With respect to the parties to the contract: name, corporate name; type of business entity, in which case, corporate purpose, social and tax domicile and, if applicable, notice address for purposes of the contract; Federal Taxpayer Registration Number and the Employer Registration Number (Número de Registro Patronal) with the Mexican Institute of Social Security and the INFONAVIT; information regarding its bylaws, such as public instrument number, date, name of the notary public who attests to the same, notary office number and the city to which it corresponds, section, part, volume, mercantile folio, if applicable, and date of registration before the Public Registry of Property and Commerce; names of the parties’ legal representatives who signed the contract; and II. With respect to the contract: subject matter; term; profiles, positions or categories indicating whether it involves operational, administrative or professional personnel, the justification of its specialized work and the monthly estimate of workers that will be at the disposal of the beneficiary of the services or contracted work.
When the contractor employer commits to provide the beneficiary with workers to provide services or perform work at various work sites located within the territorial district of more than one taxing delegation of the INFONAVIT, the contractor employer and the beneficiary are required to report the information only to the taxing delegation within whose territorial district its respective tax domicile is located. The referenced article also sets forth that the contractor employer shall, for each of its workers, submit the name of the beneficiary of the services or contracted work by means of the computer system authorized by the INFONAVIT. For such purposes and for compliance with this provision, the INFONAVIT has created in its electronic portal, access to the Joint and Several Liability System (SIRESO), which allows contractor employers and beneficiaries with salaried workers contracted under a personnel subcontracting scheme to submit the information required to prove their compliance with applicable tax obligations in housing matters and guaranties of employee rights.
It is important to include all of the information in the SIRESO because the system will not allow additional uploads, since the system validates the Federal Taxpayer Registration (RFC) and the period of the reported quarter. After submission of the information, the system will assign a folio number for follow up, which folio number should be noted before continuing because there is no way to retrieve such number thereafter. If the information contained in the files is correct, the system will generate a proof of receipt in PDF format, but if the information contained in one or both files is incorrect, the system will return the corresponding rejected file(s) in CSV format. In addition to the folio number that appears on the screen, one should receive the proof of receipt or the rejected files, as applicable, by email to the registered email address. If one or both files are rejected, the reasons for rejection should be reviewed, corrected and the process to submit both files should be performed again.
It is important to review that all of the information is correct and complete, because, as previously mentioned, once the system sends proof of receipt, additional information may not be submitted for that contractor employer and period. If the contractor employer has more than one Employer Registration Number (Número de Registro Patronal) and more than one user for access to the Corporate Portal (Portal Empresarial), the file should be submitted by any of those users, so long as the associated Employer Registration Number (Número de Registro Patronal) is contained in the submitted file.
As one can see, it is very important for contractor employers and beneficiaries of services to comply with the obligation to submit the quarterly reports to INFONAVIT in order to avoid omissions that may result in fines. In the worst case scenario, if the contractor does not comply with its obligations before IMSS and INFONAVIT with respect to the workers that are assigned to it as a result of a services contract, then the referenced institutes may hold the beneficiary of the services jointly and severally liable for the payment of the contractor’s obligations to such institutes with respect to the referenced workers. Therefore, it is important for companies that are beneficiaries of contractors’ services and personnel to require that contractors prove that they have made the correct payments of their obligations to IMSS and INFONAVIT with respect to personnel assigned by means of service contracts, and that contractors prove that they have filed the corresponding quarterly reports with IMSS and INFONAVIT.
On October 1, 2015, the Decree Promulgating the Convention on Choice of Court Agreements was published in the Official Journal of the Federation, the same which was adopted by the 20th Session of the Hague Conference on Private International Law on June 30, 2005.
This Decree forms part of the international effort to standardize the law and the jurisdiction of courts in various countries in civil and mercantile matters in order to guarantee reciprocal recognition and enforcement of judgments issued by the participating countries for controversies between individuals on such matters. It is important to note that the U.S. and Canada are not currently signatories to such Convention.
The Convention expressly excludes from its purposes matters related to the marital status of individuals, family law, transportation of people and goods, environmental matters, non-pecuniary damages, in-rem rights, shareholder rights, nuclear damages, anti-trust matters and arbitration, among others.
While the Commerce Code and the Federal Code on Civil Procedure recognize choice of court agreements and provide for “International Procedural Cooperation,” specifically, the recognition and enforcement of judgments issued abroad and/or court settlement agreements establish many limitations and requirements that can, in many cases, complicate the enforcement of such judgments.
With the enactment of this Convention, the parties to a contract may establish a choice of court agreement (also known as a forum selection clause) establishing the competent court and/or courts in any of the countries that are parties to the Convention for the resolution of any dispute, thereby waiving the jurisdiction of any other court that could apply. Once the dispute has ended with the issuance of a final judgment issued by a court in a country that is a party to the Convention, such judgment may be recognized and enforced by another participating country, without the need to review the substance of the issue, so long as certain requirements established by the Convention are met.
In addition to making forum selection more flexible to administer justice and enforce judgments and/or court settlement agreements on mercantile and civil matters, and in some cases international civil matters, the Convention complies with constitutional reforms on human rights; specifically the protection of human rights as to effective access to justice and due process, given that choice of court agreements may be declared void when such rights are not observed.
Sources of information and disclaimer: The following sources of information, among others, have been used in preparing this document: Official Journal of the Federation, the Bank of Mexico, Supreme Court of Justice of the Nation, Department of Finance and Public Credit. The CCN MéxicoReport ™ does not constitute legal or tax advice and should not be used for purposes other than as purely informative for the general public. For more information on the CCN MéxicoReport ™, any of the issues mentioned therein or to inquire about legal services, please contact Robert M. Barnett (firstname.lastname@example.org) or Mario Melgar (email@example.com), phone (210) 222-1642.
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