Mexican Legal Framework of Business Insolvency - White & Case

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to an asset against payment of the price, one of the parties pays to the other the
difference in value of the underlying asset. Goldschmidt (2008) 39 provides more
insight into the concept of contracts for difference.
A derivative financial transaction, pursuant to the Insolvency Law, is that in which
the parties are obligated to pay money or to surrender other property, which
[are referenced to] an underlying asset or market value [LCM 104]. There is no
substantive difference between this legal concept of derivative financial transaction
and that of contracts for difference.
The concept also includes those agreements which Banco de México determines
[as such] through rules of general application [LCM 104]. Banco de México is
entrusted, among others, to promote the healthy development of the financial
system and propitiate the correct functioning of the payment systems [LBM 2]. As
such, Banco de México has issued general rules 40 for derivative financial transactions
applicable to financial intermediaries (commercial banks, broker dealers, investment
companies and pension fund investment companies). These rules recognize the
following transactions as derivative transactions: (1) futures; (2) options; (3) swaps;
and (4) credit derivatives. The terms are defined as follows: 41
■ ■ Futures:
transactions for the sale or the purchase of an underlying asset
or index, in which the parties agree that the obligations shall be met at the
agreed-upon price and at a date that is subsequent to that of contracting.
■ ■ Options:
transactions in which the holder, through the payment of a premium
to the writer, acquires the right, but not the obligation, to buy or sell an
underlying asset or index at an agreed-upon price, on one or more dates, and
the writer is obligated to sell or buy, as the case may be, such underlying asset
or index.
39 P. 253.
40 Circular 4/2006 and Circular 1/2002.
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Circular 4/2006.