Mexican Legal Framework of Business Insolvency - White & Case
Mexican Legal Framework of Business Insolvency - White & Case Mexican Legal Framework of Business Insolvency - White & Case
94 h. Relief Relief is available (1) upon application for recognition of a foreign proceeding and (2) once recognition is granted. i. Upon Application for Recognition Upon application for recognition, the foreign representative may request that the judge grant temporary relief [LCM 298]. The main characteristics of this type of relief are that: ■■ ■■ ■■ Relief is subject to request from the visitor, conciliator or receiver at the request of the foreign representative. The Model Law allows the foreign representative to request relief directly from the judge. This is another flaw in the cross-border cooperation provisions of the Insolvency Law. The judge may grant or deny relief. Relief is temporary. The types of relief that may be granted include: ■■ Staying execution against the debtor’s assets. ■■ Entrusting the administration of all or part of the debtor’s assets located in Mexico to the person designated by Ifecom (including the foreign representative), to protect and preserve the value of assets that, by their nature or because of other circumstances, are perishable, susceptible to devaluation or otherwise in jeopardy. ■■ Providing for the examination of witnesses, the taking of evidence or the delivery of information concerning the debtor’s assets, affairs, rights, obligations or liabilities. ■■ Entrusting the administration or realization of all or part of the debtor’s assets located in Mexico to the foreign representative or the visitor, conciliator or receiver. ■■ Granting any additional relief that may be available to the visitor, conciliator or receiver under the laws of Mexico.
ii. Once Recognition Is Granted Once recognition of a foreign proceeding is granted, there are two types of relief: automatic, and non-automatic. Automatic relief is available only if the foreign proceeding is recognized as a foreign main proceeding. Automatic relief includes [LCM 299]: ■■ ■■ Staying execution against the debtor’s assets. Suspending the right to transfer, encumber or otherwise dispose of any of the debtor’s assets. The Model Law also provides that automatic relief shall include a stay in the commencement or continuation of individual actions or individual proceedings concerning the debtor’s assets, rights, obligations or liabilities [UML 20(1)(a)]. The Insolvency Law does not grant this measure, which is consistent with the fact that individual proceedings are not stayed as a result of a concurso declaration (cfr. 15.h). Non-automatic relief can be granted upon recognition, regardless of whether the foreign proceeding was recognized as a foreign main proceeding or a foreign non-main proceeding. Non-automatic relief is subject to request from the visitor, conciliator or receiver at the request of the foreign representative. The Model Law allows the foreign representative to request relief directly from the judge. Non-automatic relief includes [LCM 300]: Staying execution against the debtor’s assets. Suspending the right to transfer, encumber or otherwise dispose of any of the debtor’s assets. Providing for the examination of witnesses, the taking of evidence or the delivery of information concerning the debtor’s assets, affairs, rights, obligations or liabilities. Entrusting the administration or realization of all or part of the debtor’s assets located in Mexico to the foreign representative or the visitor, conciliator or receiver. ■■ ■■ ■■ ■■ White & Case 95
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94<br />
h. Relief<br />
Relief is available (1) upon application for recognition <strong>of</strong> a foreign proceeding and (2)<br />
once recognition is granted.<br />
i. Upon Application for Recognition<br />
Upon application for recognition, the foreign representative may request that the<br />
judge grant temporary relief [LCM 298]. The main characteristics <strong>of</strong> this type <strong>of</strong> relief<br />
are that:<br />
■■<br />
■■<br />
■■<br />
Relief is subject to request from the visitor, conciliator or receiver at the request<br />
<strong>of</strong> the foreign representative. The Model Law allows the foreign representative<br />
to request relief directly from the judge. This is another flaw in the cross-border<br />
cooperation provisions <strong>of</strong> the <strong>Insolvency</strong> Law.<br />
The judge may grant or deny relief.<br />
Relief is temporary.<br />
The types <strong>of</strong> relief that may be granted include:<br />
■■<br />
Staying execution against the debtor’s assets.<br />
■■<br />
Entrusting the administration <strong>of</strong> all or part <strong>of</strong> the debtor’s assets located in Mexico<br />
to the person designated by Ifecom (including the foreign representative), to<br />
protect and preserve the value <strong>of</strong> assets that, by their nature or because <strong>of</strong> other<br />
circumstances, are perishable, susceptible to devaluation or otherwise in jeopardy.<br />
■■<br />
Providing for the examination <strong>of</strong> witnesses, the taking <strong>of</strong> evidence or the<br />
delivery <strong>of</strong> information concerning the debtor’s assets, affairs, rights, obligations<br />
or liabilities.<br />
■■<br />
Entrusting the administration or realization <strong>of</strong> all or part <strong>of</strong> the debtor’s assets<br />
located in Mexico to the foreign representative or the visitor, conciliator<br />
or receiver.<br />
■■<br />
Granting any additional relief that may be available to the visitor, conciliator or<br />
receiver under the laws <strong>of</strong> Mexico.
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