Mexican Legal Framework of Business Insolvency - White & Case
Mexican Legal Framework of Business Insolvency - White & Case
Mexican Legal Framework of Business Insolvency - White & Case
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
34<br />
The balance sheet test is based on the excess <strong>of</strong> liabilities over assets as an indicator <strong>of</strong><br />
financial distress. 26<br />
b. Mexico’s Position<br />
Mexico has opted for the liquidity, cash flow or general cessation <strong>of</strong> payments test as<br />
the commencement standard under the <strong>Insolvency</strong> Law: A debtor will be declared en<br />
concurso if it has ceased, in general, paying its debts as they become due [LCM 9].<br />
c. General Cessation <strong>of</strong> Payments Under the <strong>Insolvency</strong> Law<br />
The <strong>Insolvency</strong> Law establishes precise rules that determine when a debtor has<br />
ceased, in general, paying its debts as they become due. These commencement<br />
standards are (1) the failure <strong>of</strong> a debtor to comply with its payment obligations in<br />
respect <strong>of</strong> two or more creditors, and (2) the existence <strong>of</strong> the following two conditions:<br />
[x] 35 percent or more <strong>of</strong> the debtor’s outstanding liabilities are 30 days past due; and<br />
[y] the debtor has insufficient current assets (cash, demand deposits, 90-day time<br />
deposits, accounts receivable maturing no later than 90 days and marketable securities<br />
realizable within 30 days) to cover at least 80 percent <strong>of</strong> its obligations that are due<br />
and payable [LCM 9 and 10].<br />
d. Rebuttable Presumptions <strong>of</strong> <strong>Insolvency</strong><br />
The following cases are considered by the <strong>Insolvency</strong> Law to be facts which by<br />
themselves will result in a rebuttable presumption <strong>of</strong> insolvency [LCM 11 and 309]:<br />
■■<br />
■■<br />
■■<br />
Inexistence or insufficiency <strong>of</strong> assets available for attachment.<br />
Payment default under obligations due to two or more creditors.<br />
Hiding or being absent without leaving someone to manage or run his enterprise<br />
and who can comply with existing obligations.<br />
26<br />
UNCITRAL (2005), p. 46.