[BANKRUPTCY, INSOLVENCY & REHABILITATION PROCEEDINGS IN MEXICO] 50
governed by the CIL 1 . We consider that there is still a need to reform the CIL, given that there are matters that are not properly regulated, such as: (i) the application and duration of injunctive measures; (ii) protection to creditors´ rights; or (iii) conditions that do not adjust to current market practices. This lack of regulation has led to merchants taking advantage to the detriment of creditors’ rights. Having stated the foregoing, we hereby give a brief presentation of key aspects of the commercial insolvency proceeding, as regulated by the CIL, and the protections granted by the CIL to debtors who are declared insolvent. 1.- Merchants - Insolvency Conditions. Individuals or legal entities that are Merchants pursuant to the provisions of the Commercial Code may be subject to the commercial insolvency proceeding 2 . All commercial insolvency proceedings are conducted before the specialized insolvency Federal District Judges (the “ Insolvency Courts ”), located in Mexico City. The necessary condition for a Merchant to be declared commercially insolvent is that it can be demonstrated that the Merchant has defaulted in the payment of its obligations in a general manner. In order to prove this condition of general non-performance, a payment default to two or more different creditors should exist, and one of the two following conditions should exist if the insolvency petition is filed by the Merchant, or both conditions if the insolvency petition is filed by the creditors: (i) that of its 1 The above-mentioned reform has not yet been included in the CIL, which currently states that all commercial insolvency proceedings are conducted before Federal District Judges, located across the Country, and which are appointed based on the domicile of the relevant Merchant. 2 According to the CIL, the following persons may be subject to a commercial insolvency proceeding: (i) Individuals whose normal occupation is commerce; (ii) Business corporations,
matured obligations, those that are at least thirty (30) days overdue represent thirty-five percent (35%) or more of all the obligations of the Merchant to the date on which the insolvency petition is filed; and/or (ii) the Merchant has insufficient assets, of those listed below, in order to satisfy at least eighty percent (80%) of its matured obligations on the date the petition is filed. The assets that should be considered for the effects established in this paragraph are: (i) cash on hand and on-sight deposits; (ii) deposits and investments with a term less than ninety (90) calendar days following the date of the petition; (iii) clients and accounts receivable whose maturity does not exceed ninety (90) calendar days following the date of the petition; and (iv) securities for which purchase-sale transactions are regularly conducted in the respective markets, which may be sold in a maximum term of thirty (30) banking days, and whose value is known to the date on which the petition is filed. 2.- Verification Visit . To determine whether a Merchant is found within the premises contemplated by the CIL to be declared commercially insolvent, there is a preliminary stage within the insolvency proceeding named the “Visit”, in which an inspection is made of the financial and economic status of the Merchant (the “ Verification Visit ”) by a specialist called the “Visitor”, who is appointed by the IFECOM. The CIL stipulates that the Verification Visit will have a duration of 15 calendar days, which, under the request of the Visitor, may be extended by the Insolvency Court to an including state-owned companies created as corporations and companies with majority state participation, when they initiate processes of disincorporation or extinction; and (iii) branches of foreign companies that perform acts of commerce in Mexico; however, in this case, the declaration of commercial insolvency will only encompass the assets and rights that are located and enforceable in Mexico, and the creditors related to transactions entered into with such branches.
ILN Restructuring & Insolvency Group – Bankruptcy, Insolvency & Rehabilitation Series
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