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Mexican Law for
the American Lawyer
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Page ii
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Mexican Law for
the American Lawyer
Jorge A. Vargas
University of San Diego
School of Law
Carolina Academic Press
Durham, North Carolina
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Page iv
Copyright © 2009
Jorge A. Vargas
All Rights Reserved
Library of Congress Cataloging-in-Publication Data
Vargas, Jorge A.
Mexican law for the American lawyer / Jorge A. Vargas.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-59460-634-2 (alk. paper)
1. Law--Mexico. 2. Lawyers--United States--Handbooks, manuals, etc. I. Title.
KGF327.V37 2009
349.72--dc22
2009023631
Carolina Academic Press
700 Kent Street
Durham, North Carolina 27701
Telephone (919) 489-7486
Fax (919) 493-5668
www.cap-press.com
Printed in the United States of America
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Table of Contents
Introduction
xix
Chapter 1 Introduction to Mexico’s Legal System
I.
Introduction
II. Mexico as a Country
A. Mexico’s Physical Setting
B. Population
C. Form of Government
1. The Legislative Power
2. The Federal Executive Power
a. First Government Report by President Calderón
b. Mexico’s Foreign Affairs Policies
3. The Federal Judicial Power
III. Sources of the Law in Mexico
A. The Federal Constitution of 1917
1. Jurisprudencia
B. International Treaties and Conventions
C. Federal Statutes
1. Regulatory Acts and Ordinary Laws
2. Regulations and Organic Acts
D. Codes
1. Codification Efforts in Mexico
a. Civil Code
b. Code of Civil Procedure
c. Penal Code
d. Code of Penal Procedure
e. Code of Commerce
E. Doctrine
F. Custom
G. General Principles of Law
IV. Court System
A. Federal Courts and Articles 94 and 104 of the Federal Constitution
1. Supreme Court of Justice of the Nation
2. Circuit Collegiate Courts
3. Unitary Circuit Courts
4. District Courts
5. Council of the Federal Judiciary
6. Federal Jury of Citizens
7. Electoral Tribunal
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B. State Courts
C. Other Courts
1. Federal (and Local) Conciliation and Arbitration Boards
2. Agrarian Courts
3. Tax Courts
V.
The “Americanization” of Mexican Law
VI. Amparo
A. Definitions
B. Historical Background
C. Controversies Governed by Amparo
D. Expansion of the Scope of Amparo Proceedings
E. Several Types of Amparo
F. Juicio de Amparo Judgments
G. International Influence on Latin America
VII. Best Mexican Law Web Sites
A. Free Internet Access to the Best “Mexican Law Library” in Spanish
B. Internet Web Sites Containing the “Mexican Law Library”
VIII. Conclusions
Appendix One
Appendix Two
Chapter 2 Rules for Conflicts of Law
I.
Brief Historical Background
A. No Foreign Law Allowed in Mexico from 1884 until 1988 Because
of Mexico’s Exacerbated Territorialism
1. Mexican Law Before 1988: Territorialism In Extremis
a Genesis of Mexico’s Extreme Territorialism
b. The Civil Code of 1932
B. The “Opening” of Mexico to the International Legal Community in 1988
1. Laudable Work by Academicians
a. Changes at the International Level
b. Changes at the Domestic Level
2. Drastic Policy Changes as a Result of the 1988 Amendments
a. The Civil Code of the Federal District
b. Conflict of Laws at the Domestic Level
3. Choice of Law Pursuant to the 1932 Civil Code as
Amended in 1988
a. Two Civil Codes in Mexico City Since 2000
4. Application of Foreign Law in Mexico
II. International Judicial Cooperation at the Federal Level
A. Intense Diplomatic Activity Displayed by Mexico in Major Areas of
Conflict of Laws at the Inter-American Level from 1978 to 1988
B. General Provisions
C. International Letters Rogatory
1. Through Judicial Means (Por vía judicial)
2. Through Diplomatic (or Consular) Channels
3. Through the “Central Authority” (Por conducto de la
Autoridad Central)
D. Jurisdiction Regarding Procedural Acts
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E. Taking of Evidence
F. Jurisdiction of the Mexican Court Regarding the Enforcement
of Judgments
G. Enforcement of Judgments
III. Conclusions
Glossary
Bibliography
vii
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Chapter 3 International Judicial Cooperation
I.
Mexico’s Judicial System
II. Judicial Cooperation Policies
III. Means of International Cooperation for a Proceeding
IV. Knowledge of Mexican Law
A. Legal Experts
B. Exchange of Texts
C. Legal Information Centers
D. Central Mexican Authority: This Latin Maxim Asserts That
“The Count is Presumed to Know the Law”
V.
Consular Commissions or Diplomats
VI. Special Commissions
VII. Means of Preparation for Cases Handled Abroad
VIII. Voluntary Jurisdiction Procedures
IX. Adoption of Minors
X. Obtaining Alimony and/or Child Support
XI. Visitation Rights for Minors
XII. Restoration of Minors
XIII. Letters Rogatory, Enforcement of Judgments, and Arbitral Awards
XIV. Conclusions
Glossary
Bibliography
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Chapter 4 Letters Rogatory
I.
Introduction
II. In General
III. Procedures Before a United States Judge
A. Translations
B. Form of the Letter Rogatory
C. Documentation Sent to Mexico
D. Attached Documents
E. Apostille (Official Stamps)
F. Copies
IV. Transmitting the Letter Rogatory
A. Transmission Between Central Authorities
B. Direct Transmission Between Judges
V.
Procedures Before a Mexican Judge
A. Reviewing the Letter Rogatory
B. Acceptance or Rejection
C. Execution of What Was Requested
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D. Return or Delivery of the Results
VI. Expenses and Costs
VII. Conclusions
VIII. Example of a Letter Rogatory
Attachment I
Attachment II
Attachment III
Attachment IV
Attachment V
Glossary
Bibliography
Chapter 5 International Contracts in Mexico
I.
Introduction
II. General Terms of Contracts under Mexican Law
A. Defining a Contract
B. The Laws Governing Contracts
C. Nominated and Nonnominated Contracts
III. Elements of Existence
A. Consent
B. Physical Object and Legal Possibility
IV. Elements of Validity
A. Purpose and Consent
B. Capacity to Contract
C. Proper Form of Contracts
V.
Interpretation
VI. Conventional Penalty
VII. Laws Applicable to International Contracts from a Mexican Perspective
VIII. Practical Matters in the Negotiation and Issuance of Contracts
A. Legal Perspective
Glossary
Appendix I
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Chapter 6 Acquisition of Real Estate
155
I.
Historical Background
156
A. Reasons Leading to the Imposition of Constitutional Prohibitions upon
Foreigners (and Foreign Legal Entities) Regarding Real Estate in Mexico 156
B. Content of This Article
159
II. The “Restricted Zone” and the “Permitted Zone” under Mexican Law
159
A. The “Restricted Zone” and the “Permitted Zone”
159
B. The Legal Notion of Real Estate under Mexican Law
161
1. From a Public Law Perspective
161
2. From a Private Law Perspective
161
a. Immovable Assets under Mexican Civil Law
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III. Acquisition of Real Estate in Mexico by U.S. Citizens
163
A. Under Mexican Law, U.S. Nationals Are Forced to Enter into a Fideicomiso
(“Real Estate Trust Contract”) to Enjoy Beneficiary Rights Only (Not
Ownership) over a Piece of Real Estate in the “Restricted Zone” for
Fifty Years
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1. The Mexican Fideicomiso: Legal Nature and Parties
B. Today, Fideicomisos Are Governed by Mexico’s Foreign Investment Act
of 1993 and by Its 1998 Regulations.
1. The Convenio (or Mexican Version of the Calvo Clause)
2. Fideicomisos for “Residential Purposes”
3. Fideicomisos for “Commercial Purposes”
IV. Acquisition of Real Estate for Commercial Purposes by
American Companies
A. Maximum Duration of Fideicomisos
B. Formalities
V.
Acquisition of Real Estate in the “Permitted Zone”
A. Sanctions in Case of Violations
VI. Other Considerations
A. Required Involvement of a Mexican Notary Public
B. The Federal Maritime Land Zone
C. Questionable Validity of Article 27 Permit under International Law
VII. Conclusions
Glossary
Chapter 7 Foreign Private Entities
I.
Introduction
II. Concept of Legal Entity or Person
A. Mexican Doctrine
B. Personal Attributes
C. Applicable Mexican Statutes
1. Mexico’s Federal Constitution
2. Federal Civil Code
3. Civil Code for the State of Chihuahua
4. General Law of Commercial Corporations (GLCC)
5. Foreign Investment Law
6. Federal Code of Civil Procedure (FCCP)
III. Inter-American Conventions Regarding Private Legal Entities
IV. Foreign Private Entities as Litigants in Mexico
A. Foreign Private Legal Entities Doing Business In Mexico
B. Mexican Branch of a Foreign Legal Entity
C. Adoption of the Mexican Nationality by Foreign Companies
D. Mexican Subsidiaries of Affiliates
E. Choice of Corporate Form
1. Sociedad Anónima
2. Sociedad de Responsabilidad Limitada
3. Variable Capital Corporations
4. Tax Considerations
V.
Conclusions
Multilateral Treaties
Glossary
Bibliography
Annex I
Annex II
Annex III
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Annex IV
Annex V
Chapter 8 Legal Framework of Maquiladoras
I.
Introduction
II. Background
III. Basic Principles
A. Temporary Importations
1. Inventories
2. Fixed Assets
B. Duty Free Importations
1. NAFTA Article 303
2. PROSEC Relief
3. Loss of Competitiveness
4. Mexico’s International Treaties
5. Maquiladoras as a Duty Free Program
6. Conclusion on the Duty Deferral Program Issue
C. Nonbonding Requirements
D. Value Added Tax Free
1. Typical Maquiladora Business Structure
2. Importation of Products
3. Exportation of Products
4. Maquiladora Customs Transfers
E. Tax Provisions for Maquiladoras
1. Maquiladora Prerogatives and the IMMEX Decree
2. Maquiladora Tax Prerogatives
F. Minimum Nontariff Barriers
G. No Geographic Limitations
H. No Performance Requirements
I. Special Customs Procedures
1. Consolidated Import/Export Entry Declarations
2. Simplified Import Declaration Procedures for Machinery
and Equipment
3. Certified Enterprises
IV. Maquiladoras and PITEX and IMMEX: What Are They?
V.
Maquiladora Modalities
A. Industrial Maquiladoras
B. Shelter Maquiladoras
C. Service Maquiladoras
D. Outsourcing Maquiladoras (Terciarización)
E. Holding Maquiladora (“Controladora”)
VI. Approval Requirements
VII. General Obligations of Maquiladoras
A. Limitations for Temporary Importations
B. Obligations to Pay Duty under Duty Deferral Programs
C. Specific Authorizations for Products and the Maquiladora Objective
D. Exportation of the Products
E. Tracking of All Imports and Exports
F. Administrative Notifications and Information Requirements
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VIII. Cancellation or Annulment of the Maquiladora Program
A. Cancellation Events
1. General Events of Default
2. Tax and Foreign Trade Related Defaults
B. Cancellation Procedure
1. Notifications to the Maquiladora Permit Holders
2. Actions of the Authority
3. Defense Rights of the Permit Holder
C. Annulment of a Maquiladora Program
IX. Conclusions
A. Positive Aspects
B. Negative Aspects
Annex I IMMEX (Maquiladora) Application Form
Chapter 9 Bilingual Promissory Notes
I.
Introduction
II. Are These Documents Promissory Notes under Mexican Law?
A. The Answer Prima Facie
B. What is the Governing Law for These Promissory Notes?
C. What is the Controlling Language for These Notes?
III. The Forum Selection Clauses
IV. What Would Be the Appropriate Forum to File a Law Suit and Which
Are the Right Proceedings to Be Followed under Mexican Law?
A. Commercial Executive Proceedings and Commercial Ordinary Proceedings
V.
Impediments for Legal Actions: Termination and Prescription
(Statute of Limitations)
A. Termination
B. Prescription (Statute of Limitations)
C. One More Thought About the Prescription Time
VI. A Burden Beyond the Wording of the Notes
VII. Representing the Holders of the Notes
VIII. Conclusions
Glossary
Chapter 10 International Adoptions
I.
Introduction
II. The Concept and the Legal Framework of International Adoption
in Mexico
III. Principles That Relate to International Adoption
IV. Structure of The Hague Agreement of May 29, 1993, Relative to the
Protection of the Minor and Cooperation in Matters of
International Adoption
V.
Diagnosis and Balance of Adoptions in Mexico: The National System
for the Integrated Development of the Family
VI. Conclusions
Glossary
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Chapter 11 Mexican Law and Personal Injury Cases: An Increasingly
Important Area for U.S. Legal Practitioners and Judges
I.
Introduction
A. The Growing Number of American Tourists Suffering Personal
Injuries in Mexico
1. Data Collected by the U.S. Department of State
B. Mexico: A Paradise for Tourists
1. The Grandeur of Indigenous Ancient Civilizations, Colonial
Architecture, and Pristine Environments
2. An Increasing Flow of International Tourists and Investments
C. Mexico: An Inferno for Tourists’ Tortious Injuries and Deaths
1. Types of Deaths and Injuries of American Tourists in Mexico
D. Content of This Article
II. Mexico’s Extra-Contractual Liability in Civil Law
A. Types of Civil Liability under Mexican Civil Law
1. Contractual Liability
2. Objective Liability
Legal Definitions
a. Car Accidents
b. No Products Liability Legislation in Mexico
3. Extra-contractual Liability (Mexican Torts)
Mexico’s Two Fundamental Principles in Civil Liability
B. Personal Injury Cases and Mexican Attorneys
1. Cultural Aspects
2. Economic Aspects
3. Legal Aspects
4. Professional Aspects
C. Application of Mexican Law to Tort Law Cases
1. The Territoriality Principle
2. The Principle of Lex Loci Delicti
3. Joint Application of the Local Civil Code and the Federal
Labor Act
a. Civil Law Issues
b. The Federal Labor Act (FLA)
III. Six Hypotheticals on Personal Injury and Wrongful Death Cases
A. Drowning in Federal Waters in Acapulco Bay (Guerrero)
B. A Hotel Bus Accident in Baja California Sur
C. A Dive in Cancún (Quintana Roo) Resulting in Quadriplegic Injuries
D. An Explosion of a Kitchen Boiler in a Time-Share Apartment in Durango
E. A Crash of a Helicopter in Ensenada (Baja California)
F. A Bypass Operation Performed on Wrong Patient in Mexico City (DF)
IV. Conclusions
Glossary
Chapter 12 Trusts and Estates
I.
Introduction
II. Legislative Competition in Matters of Succession According to
Mexican Law
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III. Jurisdictional Competence Provisions
IV. Applicable Law
A. General Provisions
1. Capacity to Make a Will
2. Capacity to Inherit
B. Causa Mortis Succession
C. Testamentary Successions
V.
Testamentary Successions
A. The Applicable Law for the Testamentary Succession
B. The Applicable Laws for the Form of the Testamentary Document
and Its Validity and Recognition
VI. Wills
A. Wills Made Abroad
B. Consular Wills
C. Army Testaments
D. Navy Testaments
VII. Other Topics
A. Hereditary Debts
B. Succession in Favor of the State
C. Simultaneous Death
VIII. Conclusion
Glossary
Bibliography
Chapter 13 Rights and Obligations of Americans in Mexico in Immigration
Law and Other Areas of Mexican Law
I.
Introduction
A. Growing Presence of Americans in Mexico
II. Constitutional Rights and Obligations of Foreigners in Mexico
A. A Panoply of Restrictions and Obligations Imposed on Foreigners
1. Legal Definition of Foreigner
2. Article 33 of Mexico’s Federal Constitution
B. Constitutional Rights Protecting Foreigners in Mexico
1. Article 1 of Mexico’s Federal Constitution
2. Other Constitutional Provisions
a. Prohibition on Foreigners to Exercise Political Rights
b. Right to a Trial and Due Process (with an Exception
for Foreigners)
c. No Right to Petition Authorities Regarding Political Issues
d. No Right of Political Association for Foreigners
e. Restrictions on Entering, Exiting, and Traveling in Mexico
f. Military Restrictions
g. Restrictions on Acquiring Real Estate in the “Restricted Zone”
C. Numerous Federal Statutes Regulating Foreigners and Their Activities
in Mexico
1. Article 27 of Mexico’s Federal Constitution
D. Two Sets of Codes: Federal Codes and Thirty-Two State Codes
III. Immigration Law Questions
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A. Mexico’s Domestic Legislation on Immigration Matters
1. Constitutional Provisions
2. Federal Statutes and Regulations
3. Nonimmigrants
a. Tourists
b. In-Transit Aliens
c. Visitors
d. Religious Ministers (Ministro de Culto o Asociado Religioso)
e. Political Asylees
f. Refugees
g. Students
h. Distinguished Visitors
i. Local Visitors
j. Provisional Visitors
k. Press Correspondents (Corresponsal)
4. Immigrants
a. Retirees and Pensioners (Rentista)
b. Investors (Inversionistas)
c. Professionals
d. Directors and Managers (Cargos de Confianza)
e. Scientists
f. Technicians
g. Family Dependents
h. Artists and Sports Figures (Athletes)
i. “Assimilated” Immigrants (Asimilados)
5. Other Questions
a. National Registry of Foreigners
b. Authorities and Notary Publics
c. Foreigners Before Judges and Civil Registry Officials
d. Public Forces’ Assistance in Immigration Law Enforcement
e. Lawful and Unlawful Work by Foreigners
6. Inmigrados (Lawful Permanent Residents in Mexico)
7. Special Restrictions Regarding Certain “Acts and Contracts”
a. Basic Rules
b. A Foreigner’s Need of “Authorization” from Gobernación
to Marry a Mexican National
8. Naturalization of Aliens in Mexico
a. Ordinary Naturalization
b. Special Naturalization
9. Mexican Babies by Birth from American Parents
IV. Conclusions
Further Reading
Document I
Document II
Glossary
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Chapter 14 Family Law in Mexico: A Detailed Look Into Marriage and Divorce
I.
Introduction
II. Legislative History of Mexico’s Family Law Codes and Statutes
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A. Establishment of Mexico’s Civil Registry in 1857
B. Marriage as a Civil Contract in 1859
C. Organic Act of the Civil Registry of 1859
D. Other Civil Acts
E. The Civil Code of 1870
F. Amendment to the Federal Constitution of 1857
G. The Civil Code of 1884
H. Mexico’s Current Federal Constitution of 1917
I. The Civil Code of the Federal District of 1928
III. Mexico’s Family Law Courts
IV. Marriage
A. Betrothal Agreements
B. Requirements for Marrying
1. Age
2. Consent
3. Legal Formalities
a. Marriage Application
b. Marriage Formalities or Solemnities
c. Marriage Certificate
C. Impediments to Marrying
D. Articles of Marriage
E. Rights and Obligations Arising from Marriage
1. Duty to Live Together
2. Duty to Help Each Other
3. Duty to Procreate
4. Duty of Fidelity
5. Other Legal Effects
F. Legal Regimes Regarding Matrimonial Property
1. Community Marriage (Sociedad Conyugal)
a. Assets Included in the Sociedad Conyugal
b. Sociedad Conyugal in the Articles of Marriage
c. The Assets Included in the Sociedad Conyugal
d. Initiation, Termination, Dissolution, and Suspension
of the Sociedad Conyugal
e. Agreements Permitted and Prohibited Between the Spouses
f. Liquidation of the Sociedad Conyugal
g. Legal Nature of the Sociedad Conyugal
G. Practical Recapitulation Regarding Matrimonial Property in
a Sociedad Conyugal
1. Work Products from the Spouses
2. Assets Acquired from Inheritance, Legacy, or Donation
3. Windfalls
4. Debts Contracted by One of the Spouses Within the
Sociedad Conyugal
5. Prematrimonial Debts
H. Separation of Property
1. Different Modalities of the Regime of Separation of Property
2. Dissolution and Liquidation of the Regime of Separation
of Property
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I. Antenuptial Gifts
J. Void and Illegal Marriages
1. Nullity of Marriage
2. Error Regarding the Person
3. Existence of Impediments
4. Characteristics of the Legal Actions of Grounds for Nullity
5. Legal Effects of a Judgment Which Declares the Nullity
of Marriage
6. Putative Marriage
7. Illegal Marriages
V.
Divorce
A. Historical Background
B. Legal Definitions of Divorce
C. Three Types of Divorces
1. Divorce Before the Judge of the Civil Registry
2. Voluntary Judicial Divorce
a. Content of the Spouses’ Agreement
3. Contentious or Necessary Divorce
a. Grounds for Divorce
b. Provisional Measures While Divorce Proceedings Are Pending
c. Legal Effects of the Divorce Judgment
VI. Conclusions
Glossary
Bibliography
Appendix I
Appendix II
Appendix III
Appendix IV
Acronyms (Abreviaturas)
Chapter 15 Concubines Under Mexican Law
I.
Introduction
A. In General
B. Brief Note on Concubines in Mexico
II. What is a Concubine?
A. Mexico as a Civil Law Country
B. Controversy Regarding the Legal Regime Applicable to Concubines
C. Legal Definitions of Concubine
III. Who Is a Concubine Under Mexican Law?
A. Legal Elements Required for a Concubinage Relationship
B. A Concubine Under Current Mexican Law
C. Civil Status of Persons in Mexico
IV. Rights and Benefits Legislatively Created by Civil codes
A. Legal Effects Between the Concubinage Parties
B. Rights to Receive Support (Alimentos)
C. Succession Rights
D. Presumption of Paternity Regarding Concubinage Children
V.
Other Rights and Benefits in Other Statutes
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A. Labor Law
B. Social Security Law
C. Health Law
D. Criminal Law
VI. Mexican Case Law Involving Concubines
A. Jurisprudencias, Tesis, and Ejecutorias
B. Mexican Case Law on Concubines
1. Definition of Concubinage and Its Termination
2. Inheritance and Succession Rights
3. Support
4. Moral Damages
5. Wrongful Death Indemnification under Labor Law
6. Other Social Benefits
7. Legal Equality of Man and Woman Before the Law
8. Organ Transplants
VII. Concubines under the New Civil Code for the Federal District
A. The Federal District’s Adoption of Its First Civil Code in 2000
B. Concubines under the New Civil Code
1. The Four New Articles in This Code
C. Concubines under the Civil Codes of Mexico’s 31 States
VIII. Conclusions
Appendix One
Appendix Two
Appendix Three
xvii
594
595
595
595
596
596
598
598
598
599
599
599
600
601
602
603
603
605
605
609
610
612
615
616
Chapter 16 Extradition Between Mexico and the United States:
Extradition Procedures in Mexico
I.
Introduction
II. Extradition Treaty
III. Mexican Law
A. Mexican Extradition Act and Its Extradition Procedures
IV. Troubling Issues and the Future
A. Violations of International Law
B. International Abductions
C. Bounty Hunters
D. Death Penalty
E. The Future
F. Security and Prosperity Partnership
V.
Conclusion
Glossary
617
617
620
633
633
643
643
643
646
647
648
648
649
650
Index
653
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Introduction
The presence of Mexican law in American courts is a recent and unprecedented development. Whereas fifty years ago the mention of Mexican law created little interest
among legal practitioners and made American judges evoke arcane and alien legal realms,
today — especially in California and Texas — Mexican law is beginning to be perceived as
a common part of the legal milieu.
The gradual but increasing emergence of Mexican law in our court system is the direct consequence of three major factors: i) Mexico’s physical contiguity to the United
States; ii) the increasing number of Mexicans and Mexican Americans as an important
part of the population of this country; and iii) the vigorous economic presence of U.S.
foreign investment in Mexico.
Mexico’s physical contiguity to the United States dates back to the treaties of Guadalupe
Hidalgo of 1848 and the Gadsden Purchase of 1853. As a result of these treaties, the countries have been connected by one of the longest international boundaries in the world —
extending across rivers, deserts and mountains — totaling 1,952 miles in length.
This boundary is unique both because of its length and because it runs between one
of the world’s major powers and a developing country. For decades, Mexico strove to improve on a number of fronts, including education, health and social security, communications, and industrial development. It has put special emphasis on alleviating poverty,
recognizing the human rights of indigenous peoples, implanting a more modern and efficient justice system and solidifying its incipient democracy. Accordingly, the border area
between the United States and Mexico has become a unique laboratory where the blending of peoples, cultures and wealth poses daily challenges to the contrasting legal systems
and the rendering of justice in these friendly neighboring countries.
Today, Latinos represent the largest ethnic minority in our country. The majority are
Mexican Americans or Mexican nationals. This demographic phenomenon should not be
surprising, as history documents Mexican nationals among the very first immigrants to
our country. When the United States acquired the vast Mexican territories north of the
current international boundary in 1848, it also gained thousands of Mexican citizens living there. Demographic projections suggest that the Latino population — which is steadily
gaining in education, economic status and political power — will reach 50 million by
2050.
The United States has been the largest foreign investor in Mexico since the end of World
War II. This fact is clearly reflected in Mexico’s commercial, industrial and business
sectors, directly affecting trade, agriculture, manufacturing, scientific and technological developments, as well as the growth of the construction industry, telecommunications, assembly plants, mining and tourism. Therefore, it is certain that American courts
in the future will take cognizance of and judicially resolve an increasing number of
cases governed or influenced by Mexican law.
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INTRODUCTION
This book, written for the benefit of American legal practitioners, judges and magistrates, government officials involved with Mexico, law professors and students, provides
a practical introduction to the most important areas of Mexican law that have regularly
appeared in American courts in recent years. It reflects the law of Mexico as it stands
today; however, in no way should the content be construed as providing professional legal
advice on Mexican law.
Mexican Law for the American Lawyer collects the works of a select number of Mexican legal practitioners and academicians who have been recognized as leading specialists
in Mexico and abroad in their respective areas of Mexican law. Many are also professors
of law in prestigious law schools in Mexico, and many have received graduate degrees
from U.S., Mexican or European universities.
To enhance its usefulness and practical value, this practical guide includes a number
of special features. Glossaries have been added at the end of each chapter, giving concise
and practical definitions of hundreds of Mexican legal terms. The definitions of most of
these terms were taken from Mexican statutes, codes or regulations, thus guaranteeing
their legal accuracy. Some chapters also include samples of Mexican legal documents in
order to offer American readers the opportunity to compare and contrast them with the
corresponding U.S. documents At the end of most chapters readers will also find specialized legal bibliographies composed of sources published in Mexico (in Spanish) that
may be of use for those who need to do more detailed research on a given subject.
A number of factors have contributed in recent years to an increasing number of American legal practitioners (as well as judges and magistrates) becoming fluent in the Spanish language: the growing presence of Mexican nationals and Mexican Americans in our
country; the large number of Americans doing business in Mexico, visiting as tourists or
retiring to some of its beautiful colonial cities; and the increasing number of cases governed by Mexican law and being resolved by American courts.
In turn, all of this has led some American law schools — including the University of
San Diego School of Law (USD), a pioneer in this field — to add introductory courses
on Mexican law to their curricula. A number of monographic seminars on practical Mexican law areas such as acquisition of real estate, contracts, foreign investment, companies, franchises or enforcement of judgments have also been added. The most recent
trend is to add Mexican Legal Spanish courses.
This book turned into a feasible project when a group of friends, all eminent jurists
attending a special conference on binational legal issues between Mexico and the United
States at the Universidad Autónoma de Ciudad Juárez (UACJ) in October of 2006, strongly
embraced the idea. In particular, I would like to express my sincere thanks to Jorge Alberto Silva, eminent Professor of Law at UACJ and a leading national expert on Private
International Law, who not only contributed several important chapters to this work but
assisted me in contacting the authors whose valuable contributions eventually materialized into this book. The original idea of this collaborative effort would have not become
a reality save for Jorge Alberto’s enthusiasm, decisive assistance and generous support.
This author would also like to express his personal gratitude to Kevin Cole, Dean and
Professor of Law at the University of San Diego School of Law. Dean Cole encouraged me
to produce this book and provided me, as always, with material support and administrative
assistance to successfully complete this project.
Numerous USD students provided long hours of legal research, translation work or editing skills during the tedious and arduous preparation of this book. My sincere personal
thanks go to Jerry Gonzalez (USD Class 2008); Ana Landa (USD Class 2009); Lourna
Marquez (USD Class 2007, LLMI); Naleen Gallina (USD Class 2009); Brent Allen (USD
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INTRODUCTION
xxi
Class 2009); Olga Diaz Zamarripa (USD Class of 2007, LLM); Michael Paa (USD Class
2008); Rob Dieringer (USD Class 2010); Dan Owens (USD Class 2009); Resh Jeffries
(USD Class 2009); Michael Hales (USD Class 2009); and Samin Adib (USD Class 2009).
The following students edited some chapters: Christina Clemm (USD Class 2008, LLM
Tax); Shannon Bauer (USD Class 2008, JD and LLM Tax); and Saerin Cho (USD Class
2008 and LLM Tax). The general index was diligently prepared by Lauren Gonzalez (USD
Class 2010). I also extend my thanks to Ms. Magali Garcia who took care of the formatting of the manuscript and assisted in other tasks during the preparation of this book.
No one deserves more credit and sincere recognition than Lynda Grace, my teacher
and friend, and the inspiration of my life and my teaching career.
It is highly gratifying for me that Carolina Academic Press is publishing this book in
2009 — twenty-six years after I began my academic association with USD. When I started
teaching at USD, my Mexican law course at that time was perhaps nothing more than a
legal curiosity. Although during these challenging, exciting and enriching years I taught
other courses — Law of the Sea, International Environmental Law, Human Rights, International Law, NAFTA and the Environment, Immigration Law, Japanese Law, International Organizations and Comparative Law — my initial determination was to devote
a substantial part of my academic career to inform, promote and disseminate the history
and substance of Mexican law in this country. I hope that this work contributes to achieving that treasured goal.
August 2009
Prof. Jorge A. Vargas
Editor and Co-Author
University of San Diego School of Law