Mexican Legal Framework of Business Insolvency - White & Case

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PART III Special Insolvencies The Insolvency Law provides for three special cases of insolvency: (1) public service concessionaires; (2) banks; and (3) non-bank financial sector firms. Only the insolvency of concessionaires and non-bank financial sector firms is addressed in this part of the book. Bank insolvency is addressed in Part IV. 19. Public Service Concessionaires A concession is an [administrative] act through which a private individual [or entity] is granted [1] the management and exploitation of a public service or [2] the exploitation and benefit of property of the state. 68 Concessionaires subject to differentiated treatment under the Insolvency Law include only those with a concession of the first kind (i.e., a concession for the management and exploitation of a public service). The insolvency of a debtor providing a federal, state or municipal public service under a concession is regulated by (1) its concession title; (2) the special laws and regulations governing the public service in question; and (3) the Insolvency Law to the extent that it does not oppose the concession title or the special laws and regulations [LCM 238]. The governmental entity that granted the respective concession can give suggestions to the judge in all matters relating to the appointment, removal and replacement of the conciliator and the receiver, and can appoint a manager of the enterprise [LCM 240, 241]. The appointment of an enterprise manager is different from the removal of the debtor (cfr. 16.a); however, the practical difference is not evident in the Insolvency Law. Any proposed reorganization plan to be executed by the debtor and its creditors must be made known to the concession grantor, who shall have the authority to veto the proposed plan [LCM 242]. 68 Fraga (1991), p. 242. 98
20. Non-bank Financial Sector Firms Due to recent amendments to the Mexican financial laws, it is not completely clear which entities qualify for differentiated treatment under the Insolvency Law afforded to non-bank financial sector firms. One line of interpretation suggests that the concept only includes bonded warehouses, 69 but it can be further expanded to include most entities subject to the supervision of the National Banking and Securities Commission, or CNBV. This broader concept would also include credit unions, foreign exchange houses, limited-scope financial companies (or sofoles), and regulated (and even unregulated) multiple-scope financial companies (or sofomes). CNBV is entitled to demand the concurso of a non-bank financial sector firm and shall have an active role in the process [LCM 255]. CNBV can give suggestions to the judge in all matters relating to the appointment, removal and replacement of the conciliator and the receiver [LCM 259]. CNBV may also request that the proceeding commence in the liquidation stage, or that the process is converted to liquidation at any point during the conciliatory stage [LCM 258]. CNBV shall intervene in the asset sales program proposed by the receiver [LCM 261]. 69 And, until the passing of a transition period ending in 2013, the concept would also include certain financial lessors and factoring companies that do not opt out of a regulatory regime. Thereafter, all these financial lessors and factoring companies will not be included. White & Case 99
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Mexican Legal Framework of Business
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Mexican Legal Framework of Business
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Maria Teresa Fernández Labardini*
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PART IIISpecial Insolvencies ......
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2 Consignment Consignación Coopera
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4 Priority claim Crédito con privi
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Introduction All of a debtor’s as
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PART I Out-of-Court Restructuring O
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One of the risks that suppliers of
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Under either of the two approaches,
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. Prevention of Systemic Risk Anoth
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verification and admission of claim
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The issue is still divided between
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the debtor to arrive at a consensua
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v. Remuneration Specialists are ent
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after his death, if the creditors
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The above court precedent has two f
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2. Voluntary Acceptance Small merch
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ii. Passive Estate Since a branch i
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For a debtor to be considered a hol
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■■ Shutting down the enterprise
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■■ The facts that motivate the
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filing such proofs of claim and ind
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29 P. 161. i. Conservative Measures
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i. Disposition of Assets During con
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■■ ■■ Granting of collatera
Page 55 and 56: All assets acquired by the concubin
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Page 59 and 60: ■■ ■■ Claims for an uncerta
Page 61 and 62: chattel 35 ) unless its price is pa
Page 63 and 64: c. Extensions of Credit An extensio
Page 65 and 66: the negotiable instruments and the
Page 67 and 68: epayment or abandonment shall apply
Page 69 and 70: ■ ■ Swaps: transactions in whic
Page 71 and 72: If the subject matter of the constr
Page 73 and 74: Netting of obligations in light of
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Page 77 and 78: . The Reorganization Plan The purpo
Page 79 and 80: extend to guarantors or co-obligors
Page 81 and 82: the reorganization plan); (3) all s
Page 83 and 84: If a debtor does not successfully c
Page 85 and 86: ii. Timing Removal takes effect leg
Page 87 and 88: Claims by creditors operate at two
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Page 91 and 92: predictability in commercial relati
Page 93 and 94: The receiver may oppose the foreclo
Page 95 and 96: ■■ A foreign proceeding is a co
Page 97 and 98: Conditioning the application of cro
Page 99 and 100: f. Enabling and Access The rules of
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Page 103 and 104: ii. Once Recognition Is Granted Onc
Page 105: concerning the coordination of proc
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Page 111 and 112: Capitalization is an important indi
Page 113 and 114: A bank would be declared en concurs
Page 115 and 116: Bank restructuring through support
Page 117 and 118: 30. Purchase-and-Assumption A bank
Page 119 and 120: causes for dissolution has occurred
Page 121 and 122: [LCM 75]. The determination as to w
Page 123 and 124: 33. Securities Market 84 Holders of
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Page 129 and 130: Galindo (1957). GALINDO GARFIAS, Ig
Page 132: whitecase.com In this publication,
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Mexican Legal Framework of Business Insolvency - White & Case

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