Background
Responsibilities
Liability
The soceidad anónima (SA) is the most commonly used corporate form in Mexico. Under the provisions of Article 87 of the General Corporations Law, it operates under a corporate name and is exclusively comprised of partners whose liability is limited to the extent of their shareholdings. The company's name may be freely determined, but must be followed by the words 'sociedad anónima' or the initials 'SA'. The management of the corporation is entrusted to one or more temporary and revocable executives, who may also be partners of the company.
A declaration of bankruptcy under the terms of Article 47 of the Bankruptcy Law restricts the actions of those responsible for the company's management.
Article 37(7) of the Bankruptcy Law states that a restraining order must be served on the 'merchant'. This creates problems in the case of SAs, because it does not specify the company position of the individual on whom the restraining order must be served.
Article 47 states that the restraining order applies to those responsible for the company's management. However, in practice such responsibility may rest with different personnel, such as the partners and/or shareholders, company representatives, administrators, directors or general managers. The broad definition set out in Article 47 is thus arguably too ambiguous.
The Bankruptcy Law provides that a restraining order is lifted once an "attorney-in-fact has been sufficiently directed and paid"; but again, this wording leaves room for uncertainty. 'Sufficiently directed and paid' could mean either (i) that there is enough liquidity to pay off all outstanding credit obligations, or (ii) that there is only enough liquidity for the company to continue operating.
Under Article 74, the administrators of a bankrupt company are responsible for its management, although under the strict supervision and approval of a conciliator (for further information about the conciliator and administrator please see "The Role of Conciliator in Commercial Bankruptcy" and "The Role of the Administrator in Commercial Bankruptcy"), unless the bankruptcy judge orders otherwise pursuant to Article 81. In this case the conciliator may manage the company while its operations are suspended.
The company's administrators, managers and officers remain responsible for its management during conciliation, but again, this is subject to the supervision and approval of the conciliator. Therefore, the administrators, managers and officers may only act within the parameters established by the bankruptcy judge. If the conciliator and (if applicable) the receiver assumes responsibility for the company's management, the administrators, managers and subordinates may no longer carry out any administrative act.
Article 75 provides that the conciliator may order the performance of existing agreements. The company's administrators, managers and officers are responsible for executing these orders, but may act only in accordance with the terms and conditions approved by the conciliator.
Under Article 169(2), the company's administrators, managers and officers must surrender possession and management of all goods and rights comprising the estate to the appointed receiver.
The administrator or administrators may be liable for fraud against the creditors under the terms of the provisions of Chapter 4, Title 3 of the Bankruptcy Law. This may trigger the civil liability of the company for damages, and the simultaneous criminal liability of any individual involved in the fraud.
Finally, the board of directors, administrators, directors, managers and liquidators are liable under Chapter 1, Title 11 of the Bankruptcy Law if:
- the company accounts do not indicate its true financial position;
- the company modifies, falsifies or destroys accounts; or
- the company's accounts are not made available to the judge within the term specified.
For further information on this topic contact Jaime R Guerra González, José Víctor Rodríguez Barrera, Roman Salazar Castillo, Alfonso Peniche García or Ernesto Rodríguez León at Guerra González y Asociados, SC by telephone (+52 5488 6100) or fax (+55 5543 6624) or by email ([email protected]).