On June 7^th, 2023, the Civil and Familiar Procedure National Code (CFPNC) was published in the Official Gazette of the Federation (OGF), which purpose is to establish a single civil and familiar procedural regulation based on the human rights set forth in the Mexican Constitution and International Treaties.

Comments

We consider that the importance of the CFPNC is based on the fact that the legal controversies related to the most common issues lie in civil and familiar matters. According to the recent National Census of the Administration of State Justice of the National Institute of Statistics and Geography, more than 65% of the cases processed in the first instance in all the Judicial Courts of the States were in said matters.

The CFPNC establishes specific provisions for all trials and procedures that will be predominantly oral, such as: (i) Civil Ordinary; (ii) Civil Summary; (iii) Civil Executive; (iv) Special Mortgage; (v) Special Real Estate Lease; (vi) Arbitration Trial, among others, which we estimate that should expedite and improve the processing and resolution of such trials.

Special provisions are established for the exercise of the preparatory means in the civil executive trial for alleged debts and the content of a document or the signature embodied in it is recognized.

Its states the bases for the preparation of the arbitration trial when an arbitration clause has been established in an agreement, but the arbitrator has not been appointed.

All procedures regulated by the CFPNC may be processed online (i.e. Internet), which situation we consider highly relevant, since the digitization of justice is encouraged throughout Mexico, through the use of the advanced electronic signature, the holding of virtual hearings and virtual proceedings, as well as the importance of documents generated by electronic, digital or optical means.

The application of the CFPNC will enter into force at the federal and local levels when the Federal Congress and the Local Congresses issue certain Declarations no later than April 1^st, 2027, respectively.

The Declarations must indicate the date on which the CFPNC will enter into force and must be published in the OGF and in the Official Gazettes of the States, as appropriate.

Between the Declarations and the entry into force of the CFPNC there must be a maximum period of 120 calendar days (i.e. vacatio legis). In all cases in which the Declarations have not been issued, the entry into force of the CFPNC will be no later than April 1^st, 2027.

Consequently, once the CFPNC enters into force, the Federal Code of Civil Procedures will be abrogated, as well as the civil and familiar procedural legislation of the States.

Recommendations  

There will be a reasonable period for the different Judicial Courts to implement the necessary measures for the due observance and application of this new system of common oral justice, which will cause a challenge for individuals and legal entities with the purpose of promoting digital justice for the resolution of their controversies, as happens in administrative matters.

If you have any questions regarding the foregoing, please do not hesitate to contact us

Mexico City, June 8, 2023

On August 4^th, 2021, the Decree that amends several provisions of the Civil Code of the Federal District and the Notaries Law of Mexico City regarding the entered into and validity of digital legal acts or through electronic means was published in the Official Gazette of Mexico City.

Comments

The most relevant provisions are the following:

– It is recognized that the ownership of digital assets or rights assets stored in computer equipment, electronic devices, platforms, computer server equipment’s, social media, or physical devices to access an electronic resource may be granted through a legacy.

E-mails, web sites, internet domains and electronic addresses, codes and passwords of bank accounts or securities, financial applications that require a username or password, electronic files such as images, photographs, videos, etc. are considered as digital assets or rights assets.

– The Open Public Testament (OPT) may be granted upon Public Notary by means of a digital performance. The testator may manifest his consent through the use of the Advanced Electronic Signature (AES).

Also, the OPT may be granted by electronic means when the Public Notary and the testator may see, listen, and communicate with each other directly, simultaneously and in real time during the granting of the testament. For such purposes, it is required that the testator is either: (i) in imminent risk of death; (ii) suffer at that moment a major or contagious disease; (iii) has life-threatening injuries; or (iv) may not be able to physically present in the granting of the testament. 

It is important to note that the referred provisions regarding the OPT will enter into force on August 5^th, 2023.

– On regards to the civil agreements’ form in which it is required that they are entered into in a written form, the corresponding documents must be signed by every individual compelled to, either by autograph signature, AES, or the Electronic Signature of Mexico City.

– Regarding Civil Associations (CA) and Civil Societies (CS), the associates or partners, depending on whether the case, can celebrate meetings by videoconferences that allow real time communication and indicating in the convening the electronic means by which the meeting will be held, the e-mail, number of meeting and if applicable, the password. The meeting must be recorded and kept by the administrator or administrative body and a copy of the recording must be included in the corresponding minute, which may be drafted in written form and autographically signed, or in an electronic document and signed with the AES.

Recommendations

The digital resources or electronic means are important factors to weigh the way to celebrate diverse legal acts, particularly, agreements and contracts, as well as CA and CS meetings, and the minutes that are drawn up for this purpose; therefore, we suggest analyzing and enhance the technological tools in order to provide additional benefits to such legal acts, such as the “certain date”, and inclusive, specify within the CA and CS bylaws the use of such digital tools.

If you have any questions regarding the foregoing, please do not hesitate to contact us.

Mexico City, August 10, 2021

Comments

The Federal Civil law states that a person’s consent can be manifested when his will is expressed through electronic means, optical or any other type of technology, as well as the aspects of assessment that such means require to grant them probative force. The Commercial law foresees the Advanced Electronic Signature (AES) and the Reliable or Simple Electronic Signature (SES) as those electronic data recorded, attached or associated with a data message that allow the signatories to be identified, its approval to such message and, to produce the same legal effects as an original signature.

In plain language the Blockchains are electronic “books or data blocks” to which cryptographic codes are added that provide security and inalterability to the information registers carried out by the Parties and their transmission. Each change or modification made in a “book or data block” will create a new one that will be chained and will be part of the previous one.

This technology is used recurrently to conclude “Smart Contracts”.

However, the provisions that regulate the Blockchains are incipient, which will require a robust development to resolve or channel the legal consequences by their use. This technology does not require the use of the AES or the SES.

The e-Agreements are electronic platforms provided by technology management companies that allow the Parties to create documents and sign them through the use of the SES foreseen in the Commercial law, providing security and inalterability to the information through cryptographic elements.

Finally, the NOM-151 is a Standard that provides the possibility of creating electronic documents and signing them through the use of the AES of the Parties which is recognized by administrative and even judicial authorities, guaranteeing their authenticity and inalterability, as long as the Parties have a certificate of conservation issued by an Accredited Certification Services Provider.

Recommendations

According to the characteristics of the matter, its significance, the particularities that must be taken into account such as the “certain date” in accordance with the Jurisprudence 2a./J. 161/2019 (10a.) issued by the Second Chamber of the Mexican Supreme Court of Justice, its legal consequences and, even the jurisdiction or jurisdictions where the Agreements, Contracts, etc., shall produce their effects, will be factors to weigh which technological means will be appropriate to use.

If you have any questions regarding the foregoing, please do not hesitate to contact us.

Mexico City, July 15, 2020