Mexican Law Review最新文献

The Michoacanazo was a federal criminal trial in Mexico prosecuted by the Attorney General's Office against local and state public officials from the state of Michoacán who were indicted for having ties with the local drug cartel formally known as “La Familia Michoacana.” With the indictment, more than 30 public servants were arrested and sent to prison in a roundup carried out by the federal police in May 2009. Within a two-year period, all of those arrested were eventually released. This case had strong legal and political implications nationwide because it pitted the state of Michoacán against the federal government, as well as President Felipe Calderon's administration against the Mexican Federal Judiciary. The Michoacanazo provides a glimpse into the inner workings of the Mexican federal judiciary when powerful interests collide, and corruption intermingles with politics, a drug cartel, and the complexities of handling drug-related trials.

The study of commercial law can be divided into four basic categories: (a) individuals (natural persons); (b) objects of commerce; (c) legal instruments and (d) administrative and legal procedures. Business relations between individuals and business entities requires significant legal documentation, including atypical or nonstandard business contracts. A central feature of all business transactions is the “legal entity”, used by organizations worldwide to conduct business. In order for many businesses to carry out routine activities, they must have many of the same legal rights and responsibilities as natural persons. In a word, these entities require “legal personhood”. Which leads us to the question of Legitimation. The most widely used legal instruments are nonstandardized business contracts. In essense, this is the delineation of contracting parties as entities with well-defined rights and obligations. This authority depends, in turn, on the legitimacy of the “personhood” of the contracting parties, which is often a point of dispute in business relations. Regardless of whether one accepts the use of terms “legal entity” and “legal personhood”, they often give rise to immeasurable and diverse conflicts domestically, regional and at global level. This had led to efforts to improve the rules of the International Chamber of Commerce and improve legal models that provide guidance to diverse nations. We have reviewed the works of different authors concluding with the personal insights of Elvia Arcelia Quintana.

A fundamental question concerning the upstream business model that is incorporated into the 2014 Energy Reform in Mexico concerns the intended evolution of the energy policy framework in which it appears. The situation of “before,” as alluded to in President Peña's remarks on March 18, 2015, was one in which Pemex served as the iconic state monopoly, and through which, by virtue of Article 6 of the now-abrogated Petroleum Law of 1958, all contracting was required to take place under restrictive terms that excluded the business model of an oil company. The government is now offering a mineral contract that approximates the business model of a mineral lease as understood diverse jurisdictions, including the U.S. and Mexico. There are important differences, however, ones that represent for the State and the prospective operator and layers of uncertainty and regulatory discretionality. As for the broader benefits for the country that the new involvement of oil companies might bring, there are a priori reasons for concern: the government seeks to sharply restrict the reporting of statistical data on the operations and discoveries of the oil companies, including Pemex. All such data are to be funneled through and managed by a single government agency (CNH), redolent of the way the way that Pemex has traditionally reported data. A decade will be needed to recast the national oil narrative in a way that allows for an evolution of the upstream regime in 2026 in which a mineral lease will be offered to oil companies.

The meaning of “electoral governance” is often equated with “electoral administration”. The process, however, can be divided into three distinct stages: 1) formation of regulatory bodies and norms; 2) implementation of these norms; and 3) dispute resolution. Given these three parts, electoral governance amounts to much more than just administration. In this article we explain why many academic studies of electoral governance have neglected the role of conflict resolution, focusing instead on the first two elements. In this way, electoral governance is mistakenly conceived as merely a mechanism for establishing regulatory bodies and rules. Our second goal is to show readers that electoral governance is a process that starts with the enactment of legislation, continues with administrative enforcement and judicial response, and concludes when the process returns to the beginning, either through judicial interpretation or recommendation by a legislative body. Our preliminary conclusion is that a proper understanding of electoral governance must take into account the role of conflict resolution, especially for disputed elections. Lastly, consideration must be given to a final phase which incorporates a cyclical conception explaining the returning process to the legislative dimension.

La gobernanza electoral ha sido considerada como la administración de elecciones. Sin embargo, el concepto integral está compuesto por tres dimensiones: 1) el diseño constitucional y legal de los órganos reguladores y de los estándares; 2) la aplicación de reglas y 3) la resolución de disputas, considerando estos tres niveles la gobernanza electoral es más que la administración de elecciones. En este artículo mostramos como los estudios sobre la gobernanza electoral han olvidado la dimensión de la resolución de conflictos y se han centrado en las otras dos dimensiones, lo que ha propiciado que la gobernanza sea revisada solamente como un mecanismo para el diseño de órganos y reglas. Esto nos lleva al segundo propósito del trabajo: explicar cómo la gobernanza electoral es un proceso que inicia con la creación de leyes, continúa con la aplicación administrativa y con la resolución judicial, para terminar cuando el proceso reinicia el ciclo, ya sea mediante una interpretación jurisprudencial o por medio de una recomendación al órgano legislativo. Nuestra conclusión preliminar es que una noción integral de la gobernanza electoral debe considerar tanto elementos teóricos como empíricos: primero, el énfasis en la dimensión de resolución de conflictos, especialmente en contextos de elecciones disputadas; segundo, la consideración de una fase final que incorpora una perspectiva cíclica que regresa el proceso a la dimensión legislativa.

Telecommunications reform, one of the pillars of President Enrique Peña Nieto's highly-publicized structural reforms, was enacted to recognize as human rights access to: (i) information and communications technology; and (ii) broadcasting and telecommunications services, including broadband and the Internet. The reform also gave the Mexican government the authority to sanction or even split up companies engaged in monopolistic practices, and to establish ad hoc restrictions to minimize undue market advantages for dominant industry players – defined as companies that capture 50 percent market share measured by number of users/audience, capacity or network infrastructure. This article explores several aspects of this new legislation, including regulatory agencies; media and plurality; audience and users’ rights; restrictions to minimize market manipulation; mergers; data retention and geo-localization; and access for persons with disabilities. It also examines various aspects of the legislative process, as well as some broader implications of the new law.

This work gives a synopsis of the evolution of public administration control mechanisms in Mexico. It highlights the instrumental nature of oversight, as well as regulatory and assessment aspects, and discusses issues like the historical design of the control instruments used in Mexican public administration. Certain social and political aspects from a legal perspective of administrative anti-corruption regulations are then underscored. The article concludes by drawing attention to the fact that neither the newly designed political-administrative anti-corruption structure in Mexico (the National Anti-Corruption Commission) nor the new mechanism to emerge from draft legislation (the National Anti-Corruption and Oversight Institute) will not eliminate corruption in the country because they replicate the same model established for reforming legal institutions. This article aims to show how the Mexican model has repeatedly designed administrative rules and structures that are unable to rise above the political and social spheres in which the complex phenomenon of corruption is deeply entrenched and creates a schism between legislative development and Mexico's social-political experiences in its fight against corruption. These observations can serve to help other countries design anti-corruption instruments. China is cited in this article because this article was presented as a speech regarding the Mexican experience in that country. It should be noted that the intention of this study was not to make a comparison of corruption or of the legal structures in these countries, but to analyze the case of Mexico.

The recent surge in illegal firearms trafficking from the U.S. into Mexico has helped empower Mexican criminal groups to adopt highly confrontational strategies, contributing to a surge of violence throughout the country. This article addresses the regulatory asymmetries between Mexico and the U.S. with respect to the production, import, export, sales and possession of firearms. It reviews several important gun laws and explores why this asymmetry limits bilateral cooperation and encourages gray market activity. It also examines the autonomy of U.S. states to regulate firearms, as this creates a diverse regulatory map that complicates any effort to stem smuggling. The results are flourishing gray markets on one side of the border and violent criminal activity on the other.

The international responsibility of States is based on two legal precepts: first, a State must be subject to international obligations; and second, a State must be responsible for noncompliance with such obligations. Specific and concrete damages are not required for the allocation of international responsibility to a State. Given these elements, the Inter-American Human Rights System, through the Inter-American Court, will not hear disputes involving a State’s international responsibility without the existence of a specific and concrete human rights violation. While this seems appropriate, rulings by the Inter-American Court have subsequently opened the door to States’ objective in ternational responsibility; i.e., responsibility under the American Convention on Human Rights that require no showing of a specific violation. In the author’s view, the international responsibility of States, similar to Public International Law, should be based on noncompliance without the need for a victim –especially in human rights cases. For this reason, the Inter-American Court is correct in holding States responsible for domestic laws that contravene its own human rights commitments under international treaties– regardless of whether or not these norms have been enforced.

The main function of administrative courts in Mexico is to resolve disputes between administrative agencies and citizens. Mexico is a federal system with 31 states and a Federal District. Twenty-nine states and the Federal District have administrative courts of this type. Most of these courts follow the French model of reviewing administrative actions in bodies that do not form part of the regular justice system. However, almost half of the states have deviated from this model and ascribed these administrative courts to the judicial branch. How does this change in the institutional framework influence the way administrative court judges review administrative action disputes? In order to answer this question we analyzed the rulings of judges from the different types of courts empirically. The Mexican federal court structure made this experiment possible because there are both administrative courts incorporated into the judiciary and autonomous courts. We used a database of more than 4,000 cases from over twenty local administrative courts. We analyzed the influence of the branch to which the court belongs, the procedures of appointment for judges, the length of a judge’s term in office, and the protection of judges’ salaries over their actual decisions. We classified decisions into two broad categories: pro-government decisions and case dismissals. The results point toward evidence that the branch to which the court belongs, the length of a judge’s term in office and governor intervention in the appointment of judges affect judges’ decisions.