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Ritch.com.mxTHE BUSINESS LAW RESOURCE FOR LATIN AMERICA Capital Markets 20 – MexicoPablo Perezalonsoritch Mueller, SC . which laws, regulations and administrative rulings govern the offering 4. How is financial fraud and price manipulation in capital markets and trading of securities and how are they proposed, adopted and The Securities Market Law provides that the persons who, directly or The main laws and regulations governing the offering and trading of indirectly, participate in securities market transactions may not: securities in Mexico are the Securities Market Law (Ley del Mercado de • engage in market manipulation transactions, which are defined as those Valores; the ‘Securities Market Law’), the Credit Institutions Law (Ley de acts that interfere with the free offer and supply, by artificially affecting Instituciones de Crédito; the ‘Banking Law’), the Investment Funds Law the trading volume or the price of securities, with the intent of obtaining (Ley de Sociedades de Inversión;), the banking regulations (Disposiciones de a benefit or the benefit of a third party. Please note that stabilisation Carácter General Aplicables a las Instituciones de Crédito; the broker dealer transactions in public offering are not considered market manipulation regulations (Disposiciones de Carácter General Aplicables a las Casas de Bolsa; the issuers regulations (the Disposiciones de Caracter General Aplicables a • Interfere or tampering with the negotiation systems or the information Emisoras de Valores y Otros Participantes en el Mercado de Valores; the rules for the International Quotation System (Disposiciones de Carácter General • enter into transactions when there is a conflict of interest; Aplicables al Sistema Internacional de Cotizaciones; the ‘SIC Rules’), the • enter into transactions that do not comply with the market good Disposiciones de Caracter General Aplicables a Préstamos de Valores) and Circular 4/2006 issued by Banco de México, as well as other rules applicable • order or participate in transactions for its own benefit or the benefit of third parties, with knowledge that a third party has or will enter into a Laws may only be adopted and amended by Congress. Senators, representa- transaction with respect of the same securities.
tives, state governments and the president of Mexico may propose new laws. Regulations are proposed, adopted and amended by the relevant supervisory A broker dealer has no obligation to monitor the compliance of its authority or by the president of Mexico.
clients with the above described provisions, but there is a general obligation applicable to Mexican broker dealers to reject any instruction from a client if such 2. what is the rationale behind this legislation? order would result in a breach of the Securities Market Law. Furthermore, the client would be liable vis-à-vis the relevant broker dealer for any loss or damage • organise, develop and regulate securities markets by promoting resulting from client’s instructions to enter into a prohibited transaction. The trader or sales person in the Mexican intermediary who received the instruction • protect the interests of the investors; would also be liable if it knew of the potential violation of the law. A broker dealer should not accept any instruction that would result in a violation of the 3. which regulatory authorities oversee capital markets and what is the 5. what sanctions and remedies can the regulatory authorities impose? The CNBV may impose fines depending of the type of violation, the gains The Comisión Nacional Bancaria y de Valores (the National Banking and obtained and the damage caused to the system. In certain cases, including Securities Commission; the ‘CNBV’) has authority to supervise and regulate, insider trading and market manipulation, violations are punished with prison terms. Violations of issuers of securities may also result in suspension or delisting. In additional violations by banks and broker dealers may result in intervention and revocation of the licence, as well as the suspension or 6. what are the private remedies an investor may pursue? Banco de México, Mexico’s central bank also regulates derivatives transactions, In addition to the right to sue for damages in case of breach of agreement, repurchase agreements and securities loans. The Ministry of Finance investors may request the payment of such damages in cases where the participates with the CNBV and Banco de México in issuing regulations.
relevant broker dealer or issuer has violated the law. Also, in certain cases including insider trading, disclosure of confidential information and disclosure of incorrect data to the public, the affected party may sue the counter-party for damages. 7. what is the legal definition of a ‘security’ and which types of securities the technical committee of the International Organization of Securities Com- missions (or ‘IOSCO’) or that is part of the European Union and distributed in Securities are defined as shares, securities representing a participation in the countries that are members of the technical committee of IOSCO. capital of an entity (including corporations, partnerships, trusts, companies) or equivalent instruments, debentures, bonds, warrants, debt certificates, 9. what are the disclosure requirements for securities issuers for both promissory notes, letters of exchange and other negotiable instruments that may be registered or not in the National Registry of Securities (the ‘RNV’), There are no disclosure requirements for private offerings. In the case of that may be traded in securities markets that are issued in series or in bulk, public offerings the issuer must prepare a prospectus that must include and that represent a participation in the capital of an entity or a part of a financial, legal, accounting and business information, as well as risk factors, collective loan or any credit right, in accordance with Mexican or foreign description of the transactions, management discussion and analysis of laws. Securities more commonly traded are government debt securities, the financial situation, description of the issuer and its corporate bodies, certificados bursatiles (debt bonds) issued by corporations or trusts, shares regulation and taxes. Issuers of securities must update their public information and certificados de participación ordinario (trust participations representing on a quarterly and annual basis. Such information includes audited financial shares). Warrants, foreign securities and tracs are also traded.
statements, annual reports and corporate documents. The issuer is required to disclose, through the Mexican Stock Exchange, 8. How are securities offered and sold to the public? all material events at such time such issuer becomes aware of such events, Only authorised broker dealers established in Mexico (and to certain limited together with all relevant information in respect of such events. extent, Mexican banks), may perform securities intermediation in Mexico. A ‘material event’ is defined as any action, fact or event that has the An authorization from the CNBV is required in order to incorporate and ability to influence the price of the securities of an issuer. In order to determine operate a broker dealer. Only corporations incorporated in Mexico may be whether an event is material, the issuer must consider if the relevant action, fact authorized as broker dealers or banks. Currently, Mexican affiliates of foreign or event represents, at least, 5 per cent of the assets, liabilities or total consolidated financial institutions may be registered as banks, broker dealers or other capital, or 3 per cent of the total consolidated sales of the preceding fiscal year financial entities, as long as such foreign financial institutions are organised of the Issuer. When such transaction represents less than such percentages, or if it under the laws of a country member of the North America Free Trade cannot be measured as a percentage, the issuer must evaluate if such action, fact Agreement, the European Union or Japan.
or event is or may be considered as relevant information.
Securities intermediation is defined as the regular and professional The issuer is required to explain to the public, immediately upon the request from the CNBV or the Mexican Stock Exchange (as defined below), the causes • execution of transactions with the purpose of facilitating the contact that, in the opinion of the issuer, resulted in: • unexpected movements in the market relating to the price or transaction • execution of transactions with securities on behalf of third parties as agent, representative or with any other authority acting in such activities in its • changes to the offer and demand of the securities that are inconsistent with behalf or on behalf of third parties; and the historic behaviour and that cannot be explained with publicly available • negotiation of securities on its behalf with the public or with other intermediaries that act in the same way or on behalf of third parties. 0. are there exemptions from securities registration? A public offering of securities in Mexico is defined as the offering, with or The Securities Market Law provides that any person, can conduct a private without price, in Mexico using massive means of communication and addressed offering of securities in Mexico without requiring the registration of the to undetermined persons to subscribe purchase, sell or transfer securities. securities with the RNV. A private offering of securities must comply with Generally the use of written selling material or efforts to contact any one of the following requirements: undetermined potential investors within a group of persons is considered to be • the offer is addressed exclusively to institutional or qualified investors (as a public offering. Any public offering of securities in Mexico (ie, indiscriminate mailing or • in the case of equity securities, the offer is directed to less than a hundred distribution) requires the prior approval of the CNBV and may only be made by authorised intermediaries, additionally, only securities registered with the • the offer is made as part of an employee offering plan;RNV may be publicly offered Mexican issued securities, securities issued by • the offer is made to shareholders or partners of corporations that engage multilateral banks and securities issued by foreign issuers may be registered at exclusively or mainly in transactions with those persons; and present. In order to register any Mexican or foreign securities with the RNV • any other private offering approved by the CNBV. and therefore, be able to be offered to the pubic, it would be necessary to file an application to the CNBV, which should include among other things, a Securities listed on the SIC are not required to be registered with the RNV.
prospectus, legal and financial information of the issuer prepared in accordance with Mexican or international accounting principles and credit ratings from . Do your accounting standards differ in significant ways from other recognized credit rating agencies must be obtained. A Mexican broker dealer jurisdictions’ generally accepted accounting principles? No, although Mexican regulations require the restatement of all comparative financial statements to constant Pesos as of the date of the most recent balance • securities listed in the International Quotation System (‘SIC’) maintained sheet presented in order to reflect inflationary effects.
by the Mexican Stock Exchange are not required to be registered with the RNV; and 2. is there a planned convergence to the international accounting • any other securities not registered with the RNV may be offered privately Standards Committee’s international Financial reporting Standards? by non-local banks and broker dealers to Institutional or Qualified Investors Mexican regulations require that Mexican issuers of securities prepare (as defined below). their financial statements in accordance with the International Accounting Standards Committee’s International Financial Reporting Standards. In the The securities that may be listed in the SIC include foreign issued securities case of certain issuers such standards are modified by the rules issued by the that are registered, authorised or regulated, for sale to the general public, by a Mexican Board for Research and Development of Financial Standards.
securities regulatory agency that is established in a country that is a member of 3. Does your jurisdiction offer policy and tax incentives to invest in the 4,596 billion pesos. The value of the equity transactions in 2009 was of approximately 1,477,742 million pesos with 62,967,308,000 shares traded. Yes, transactions with shares carried out in the Mexican Stock Exchange Debt securities although listed on the Mexican Stock Exchange are not by individuals who are Mexican residents for tax purposes and individuals and corporations that are foreign residents for tax purposes are exempt from There are also 209 investment funds listed,182 debt issuers listed, and approximately 557 foreign securities listed on the SIC.
4. Please describe the applicable tax withholding regime, the customary 8. where and how are derivatives traded? exceptions and the commonly used standard tax-planning devices.
Listed derivatives are traded in Mexico in the MexDer, Mercado Mexicano Gains on the sale of shares by a non-Mexican holder will generally not be de Derivados, S.A. de C.V. (‘MexDer’). The agreements that are traded are subject to Mexican income tax if the transaction is carried out through the futures and options of interest rates, foreign exchanges, the index of the Mexican Stock Exchange. Gains received by a non-Mexican holder arising Mexican Stock Exchange and a very few limited equity securities. The risk of out of the sale or other transfers of shares made in other circumstances, are the trades is not the counter-party, but a central counter-party called Asigna, deemed as income arising from Mexican sources subject to Mexican income S.A. de C.V. Contraparte Central, which is also the clearing and settlement tax. These transfers of shares by a holder are generally subject to a 25 per cent institute. Derivatives are not considered securities. income tax rate in Mexico, which is applicable to the gross proceeds realised from the sale. Should the buyer in any such transactions be a Mexican resident 9. Can you explain development of structured finance instruments in for tax purposes or a non-resident with a permanent establishment in Mexico for tax purposes, the applicable tax would be withheld by such Mexican In the Mexican securities market the most commonly traded structured resident from the acquisition price. Alternatively, a non-resident holder may, finance instruments are securitisations of assets. Such securitisations are subject to certain requirements, elect to pay taxes on the gains realised from structured as debt securities issued by trusts that invest in different assets, the sale of shares on a net basis at a rate of 30 per cent.
including mortgages and consumer loans. There are also structures known as Any person or group of persons that, directly or indirectly, hold 10 per CKDs that are trusts that issue debt securities and invest the proceeds in the cent or more of our outstanding shares, or owns a controlling interest, shall financings of development projects or corporations.
be obligated to pay Mexican income taxes in respect of a sale of our shares, even if the sale is carried out through the Mexican Stock Exchange, if the sale 20. How are institutional investors defined and regulated?comprises a block equal to or exceeding 10 per cent, or a controlling interest in The Securities Market Law and regulations define institutional investors as our outstanding shares, in a single transaction or a series of transactions, during Mexican and foreign banks, broker dealers, insurance and bond companies, any 24-month period.
bonded warehouses, financial leasing companies, factoring companies and Under the Mexico-United States tax treaty and other treaties entered by investment funds, private pension and annuities funds and foreign pension and Mexico, a holder who is eligible to claim the benefits under such treaty, may be investment funds (‘Institutional Investors’). Such regulations define qualified exempt from Mexican taxes on gains realised from a sale or other disposition investors as individuals and corporations which maintain during the previous of our shares, to the extent such holder does not own, directly or indirectly, 25 year investments in securities for an amount equal or similar to 1.5 million per cent or more of the outstanding capital stock during the 12-month period Unidades de Inversión (approximately US$450,000) or that have obtained preceding the relevant sale, provided that certain formal requirements set forth during the previous two years a gross income of at least 500,000 Unidades de by the Mexican Income Tax Law are also complied with.
Inversión (approximately US$160,000) (‘Qualified Investors’). Institutional Investors are heavily regulated and subject to the supervision of different supervisory bodies including the CNBV and Banco de There is only one stock exchange in Mexico, the Bolsa Mexicana de Valores, México. Generally, institutional investors may only invest in those assets that the S.A.B. (the ‘Mexican Stock Exchange’), which is a listed corporation. Only regulations explicitly permit.
authorised Mexican Intermediaries may trade with securities listed on the Mexican Stock Exchange and only Mexican casas de bolsa (broker dealers) may 2. what is the definition of ‘insider trading’? Outline the major trade with equity securities. All securities listed on the Mexican Stock Exchange are either registered with the RNV or listed on the SIC. All such securities are Inside information is defined as any facts, events or actions of any nature that cleared and settled through SD Indeval, Institución para el Depósito de Valores, may influence the prices of securities registered with the RNV and that have S.A. de C.V. (Indeval). not been disclosed to the public through the relevant stock exchange. It is not necessary that the relevant person has knowledge of all inside information to 6. Please provide a general description of securities settlement systems in be considered an insider provided that the information to which it has access may affect the trading price of the relevant securities.
Securities deposited with Indeval are maintained through book-keeping It is assumed that the following persons have access to inside information entries and in accounts opened in the name of the relevant Mexican Intermediary. Mexican brokers or banks maintain internal records identifying (i) board members, secretaries of the board, statutory auditors, relevant officers, the securities owned by each client. All transactions are settled on a delivery attorneys-in-fact of the issuer or of corporations controlled by the issuer versus payment system. When an order to sell or purchase is delivered to or of corporations that own directly or indirectly 10 per cent or more of the Mexican Stock Exchange, any investor may participate. Pre-arranged transactions are not permitted. All transactions are settled on a delivery versus (ii) shareholders or persons controlling directly or indirectly 10 per cent or payment basis. In equity transactions the Contraparte Central de Valores, S.A. de C.V. acts as central counter-party.
(iii) board members, secretaries of the board, statutory auditors, relevant officers, attorneys-in-fact of corporations that provide services in connection with 7. what are the distinguishing characteristics of your debt and equity any event that may be consider inside information; (iv) shareholders that own directly or indirectly 5 per cent or more of shares of Debt markets are more active than equity markets. According to the Mexican listed financial institutions or financial holding companies or 10 per cent in Stock Exchange information disclosed to the public, there are approximately the case of non-listed financial entities; 128 issuers of equity securities with a market capitalisation of approximately (v) board members, secretaries of the board, statutory auditors, relevant officers, attorneys-in-fact of the corporations listed in (iv) above; ket Law, in order to prevent from incurring in liabilities, directors must act with (vi) persons that have a significant influence or power to instruct in the issuer good faith and in the best interest of the corporation. They also must keep or in the corporate group of the issuer; and confidentiality, avoid conflicts of interest and refrain from obtaining personal (vii) those persons that enter into transactions that are significantly different than economic benefits. their historical trading pattern and that may have reasonably accessed inside Under the Securities Market Law, shareholders representing 5 per cent of information because they had communications with spouses, relatives or the capital stock may initiate actions against the board (as a body) or its directors ‘significant others’ of any of the persons listed above; or business partners of (individually). Any damages or losses payable by them as a result of any such any of the above listed persons. claim, will be for the benefit of the corporation. Generally, directors may be able to defend against any liability if they: In addition, persons with inside information may not: • enter into any transaction or instruct any transaction with securities or • took decisions based on expert opinions; and derivatives related to such securities, if the market prices of such securities • complied with the resolutions taken by the shareholders’ meeting, if or derivatives may be affected by the inside information; • deliver or communicate to third parties the inside information (except to those persons that are required to be informed as result of their position or Although the Securities Market Law provides guidelines for the defence against employment); or liability, as described above, because Mexican law and jurisprudence have not • issue recommendations or provide advice with respect to securities or developed the concepts of ‘due diligence’ and ‘fiduciary duty’ as other case derivatives related to such securities, if the market prices of such securities law-based countries, it is very difficult to predict how Mexican courts will or derivatives may be affected by the inside information.
The above described restrictions would also be applicable to transactions entered 25. which governing bodies must public companies have and what are outside Mexico but that have an impact in Mexico.
The Securities Market Law provides that insiders may not, directly or indi- The main corporate body is the shareholders meeting. Its rights and duties are rectly, acquire or purchase, directly or indirectly, securities issued by the issuer listed in applicable law and in regulation and their by-laws, but include among in respect of which they are an insider or derivatives that have as underlying others the amendment of by-laws, increases or decreases of capital, payment assets those shares, during a three-month period following the date on which of dividends, mergers and split-ups and appointment of board members they effected the last divestiture on any type of securities of the same issuer, and principal officers. The board must have a maximum of 21 members. At and vice versa. least 25 per cent of the board must be integrated by independent directors. The above limitation is not applicable to: Independent directors must be selected because of their experience, capacity • transactions entered by banks or broker dealers with their own position; and professional experience, and because they are able to perform without conflicts of interest. The Securities Market Law lists those persons who cannot • securities purchased in connection with an employee stock option plan; • securities issued by mutual funds; or The board of a listed company should be assisted by two or more • authorised by the CNBV in connection with: committees. By statute, listed companies must have: • a committee of corporate practices; and • transactions that are entered with the purpose of exchange shares from Each of such committees must be integrated by at least three members, and all one series to shares of another series of the same issuer; and of them must be independent. As an exception, the committee of corporate • in cases where the insider requires liquidity.
practices may be integrated by a majority of independent directors, in the case that the relevant listed company is controlled by a person or group of persons 22. what are the roles of the authorities when a foreign issuer makes a that hold more than 50 per cent of its equity. The main rights and obligations public offering? who has jurisdiction over the public offering? Foreign issuers that would like to make a public offer must comply with the • to establish the general strategy of the business; same requirements applicable to Mexican issuers. An authorisation from the • to approve the guidelines for the use of corporate assets by related CNBV would be required in order to obtain the registration of the foreign securities with the RNV and to conduct a public offering.
• to approve all transactions with related parties, except for transactions: 23. is there a formal understanding with other jurisdictions to share • between the holding company and its subsidiaries or controlled information and provide reciprocal assistance in enforcement matters? affiliates, as long as they are made in the ordinary course of business and The CNBV has entered into a number of memoranda of understanding with • with employees, as long as they are entered under general plans for other regulators from other jurisdictions, including the United States and • to approve all transactions not in the ordinary course of business or that result in the acquisition or sale of assets, the granting of a guaranty or the 24. Please describe the framework for corporate governance.
assumption of debt for an amount equivalent to 5 per cent or more of the The Securities Market Law requires directors to act with a view to create value for the benefit of the corporation, and not for the benefit of a person or group of persons. Directors are required to act diligently and taking reasoned 26. are there any laws governing capital markets that are unique to your decisions similar to the business judgement rule of other jurisdiction.
The concept of the ‘business judgment rule’ has been introduced to the No.
Securities Market Law and may prove difficult to assert in litigation in Mexican courts because of its interaction with Mexican traditional concepts of liability.
Pursuant to the diligence and loyalty duties imposed by the Securities Mar- 27. How do authorities and issuers resolve matters that are not expressly 30. Describe the main stock exchanges and OtC networks.
provided for in the securities laws and regulations? Please see answers to questions 15, 16 and 17 above.
The CNBV and the Ministry of Finance have a great deal of discretion to decide matters that are not specifically provided in law and regulations. 3. Describe recent initiatives undertaken by the government to improve Although issuers can express their views, ultimately, the decision is made by the regulation and efficiency of its capital markets.
Regulations have been recently changed in order to improve the quality of the information disclosed by issuers as well as the corporate governance.
28. which types of companies may make public offerings in your 32. Describe the main obstacles that a company may confront in your Corporations (sociedades anonimas). When such corporations list their shares jurisdiction when it is trying to become public.
they are called sociedades anonimas bursatiles. Trusts also issue securities The main obstacle is that Mexican corporations are not used to disclose their mainly in the context of securitisations. information and its difficult for them to be subject to the rules applicable to issuers of securities. 29. which economic activities or segments are the most active in the Mining, telecommunications, finance, industrial and commercial retailers.
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