Use the Lexology Getting The Deal Through tool to compare the answers in this article with those from other jurisdictions.
Describe the significance of, and developments in, the automotive industry in the market.
In recent years, the automotive industry has grown to be one of the economy’s industrial manufacturing pillars, currently representing approximately 4 per cent of Mexico’s gross domestic product and 18 per cent of the national manufacturing GDP, standing as the second most important manufacturing activity after the food industry. It creates more than 900,000 direct jobs and is one of the main sources of foreign investment with over US$52 billion invested each year.
The automotive industry in Mexico has been growing at a fast pace. Among the advantages that Mexico offers to original equipment manufacturers (OEMs), as well as to tier 1 and tier 2 companies, are a skilled workforce, a privileged geographical location and, thanks to the number of international treaties signed, the ability for those companies to have excellent access to multiple international markets (over 45 countries and counting).
To better understand the Mexican market and the current situation in the industry, we should highlight that production is generally divided into three main categories: light vehicles, heavy vehicles and auto parts. The figures for those sectors show that in 2017 alone over 3.9 million light vehicles and 110,000 heavy vehicles were produced (a decrease in heavy vehicles production, compared with 2016); the auto parts sector reached over US$82 billion in value, resulting in Mexico being the fifth-largest auto parts producer in the world and the largest in Latin America, while consolidating its position as the seventh globally for vehicle production.
The National Auto Parts Industry has forecast that production of Mexican auto parts will continue to grow in the coming years, with an expected US$96 billion value by 2021.
Currently Mexico has over 20 assembly plants and over 300 tier 1, 400 tier 2 and around 400 tier 3 suppliers countrywide. The states of Sonora, Coahuila, Puebla, Mexico State, Guanajuato, Nuevo León and Aguascalientes generate 84.2 per cent of the total vehicle production.
Regarding exports, Mexico ranks as the fourth-largest exporter in this industry; during 2017 Mexico exported almost 3.2 million units, a solid 12.1 per cent increase on exports when compared to 2016, and the highest figured ever reported by the industry. Mexico currently exports over 82 per cent of its total vehicle production, with an approximate value of US$70.6 billion.
There are many destinations for Mexican exports, the main one being the United States, which has Mexico as its second-largest automobile supplier, receiving around 70 per cent of its vehicle production. Nevertheless, exports to other destinations have also risen. For example, in the last few years China became Mexico’s sixth most important destination, while exports to Argentina grew by 53.2 per cent, to Chile by 41 per cent and to Canada by 8.5 per cent.
As a result of investments and the establishment of new plants within Mexico, and notwithstanding recent plant cancellations (such as the Ford plant in San Luis Potosi), it is expected that in the next few years Mexico will be the world’s fourth-largest vehicle producer and the third-largest exporter. Many predict that by 2020 (with the arrival of Mazda, Audi and BMW, and expected investment from Chinese companies such as BAIC and JAC) the industry may reach the production of 5 million light vehicles in more than 30 plants.
What is the regulatory framework for manufacture and distribution of automobiles and automobile parts, such as vehicle-type approval process as well as vehicle registration and insurance requirements?
In order to export to new markets, OEMs must comply with several legal and technical requirements. In Mexico imports and production of new vehicles are subject to a wide range of directives and regulations.
There are several Mexican official standards (NOMs) regulating the technical requirements of certain products. The government main agencies that are authorised to issue NOMs in the automotive sector are the Ministry of the Environment and Natural Resources regarding environmental issues, the Ministry of Communications and Transportation -for all transportation and safety matters, and the Ministry of the Economy.
Several models have now been discontinued as a result of the application of NOMs setting minimum security measures, and are currently being substituted with other models. For illustrative purposes, in 2017 Nissan decided to stop producing one of its best-selling vehicles, the Tsuru, and has announced that it will end the distribution of its Tiida model in Mexico. Some other manufacturers are looking for alternate models to sell in the Mexican market as a result of heightened security measures required by the government (items such as automatic braking systems, air bags and defrost systems, among others). Beginning in 2019, manufacturers will not be allowed to sell automobiles that do not comply with the new minimum safety features.
The environmental issues addressed by such NOMs are mostly about fuel emissions and regulation of noise, clean energies and diesel. In the case of safety matters the requirements are mostly about mechanical conditions and dimensions of the vehicles, as well as brakes, brake callipers, air bags and other safety devices and features, some of which are industry standards in other countries, but were not yet mandatory in Mexico.
It is essential to meet the NOM requirements and provide evidence of compliance with such standards in order to import or produce vehicles in the Mexican market. Under Mexican law, the NOM certificate holder is responsible for warranty, maintenance and product liability. Such certificates are not transferable, although manufacturers with NOM certificates may extend their usage rights to their distributors.
Finally, the government grants certain facilities in support of companies complying with responsible environmental practices, as part of a corporate social responsibility drive aimed at the incorporation of fair values into business practices.
Development, manufacture and supply
How do automotive companies operating in your country generally structure their development, manufacture and supply issues? What are the usual contractual arrangements?
Automotive companies usually operate using an IMMEX maquiladora programme, which allows a Mexican entity to engage in manufacturing activities (mainly for exportation purposes) and temporarily import parts and materials on a duty-free basis. The usual IMMEX maquiladora structure is through a principal, which is a foreign entity residing in a country with which Mexico has a tax treaty in place, which holds the manufacturing agreements. Such agreements set forth the organisational, operational and economic terms, and are entered into by the principal and the manufacturing Mexican entity.
Maquiladoras may be established anywhere in the country and, if certain requirements are met, they can also sell a part or even all of their production locally. Usually maquiladoras are incorporated as stock corporations or limited liability companies, which have minimum capital requirements, and foreign investors can own up to 100 per cent of the corporate capital of such entities.
Among the many advantages of operating under the IMMEX programme are temporary duty-free imports on raw materials, exemptions on import duties, value added tax refunds, and others.
There are also sectorial relief programmes applicable to the vehicle and auto parts industry which aim to give companies a preferential tariff rate to import goods intended for production, regardless of the country of origin, and which also foresee preferential trade tax rates to export the resulting products.
In an effort to create manufacturing clusters and reduce idle inventory volumes, assembly plants commonly require that their suppliers be as close to them as possible, forcing suppliers to move locally.
How are vehicles usually distributed? Are there any special rules for importers, distributors, dealers (including dealer networks) or other distribution partners? How do automotive companies normally resolve restructuring or termination issues with their distribution partners?
Before starting the importation procedure, the vehicle’s proper compliance with Mexican NOMs and applicable regulations must be fulfilled. The actual importation process is handled by a customs broker.
Since 2004 it has been possible to import new vehicles from the United States, Canada and member states of the European Union without any import tariff. There are many regulations on this type of import establishing several requirements for such vehicles, including maximum mileage allowed for the vehicle to be considered as new, compliance with applicable NOMs, etc.
As of a few years ago, governmental decrees were issued in an effort to reduce the flow into Mexico of used vehicles purchased cheaply in the United States. This was a result of growing concerns about the consequential creation of an ageing motor pool, higher pollution levels, fuel efficiency, maintenance costs and difficulties identifying such vehicles.
Distribution is generally handled through distributors which enter into distributorship agreements with the automotive manufacturers, and usually contain standard contractual termination clauses (eg, failure to reach certain thresholds for certain periods of time, other performance requirements, etc).
Mergers, acquisitions and joint ventures
Are there any particularities for M&A or JV transactions that companies should consider when preparing, negotiating or entering into a deal in the automotive industry?
Mergers and acquisitions in the automotive industry are fairly standard compared to other M&A operations and can be done by purchasing stock or shares of a company, purchasing assets of a company or by merging two or more companies to create a new one or to merge one into another.
Joint venture companies (ie, the creation of a new entity into which two existing entities transfer assets or capital) in Mexico are independent from their parent companies and must obtain a separate Federal Taxpayer Registry number. Usually these new entities have shareholder agreements in place that provide for the corporate structure, management, business plans, etc.
Companies should get local legal advice in order to comply with all applicable laws, especially those regarding antitrust and economic competition, environmental, tax, labour and administrative provisions, all applicable NOMs and all authorisations, licences or permits required before beginning operations.
English is widely spoken in Mexican M&A transactions, and agreements are often drafted in English, while jurisdiction and applicable law may be set to be Mexico or a foreign jurisdiction (most commonly New York). Arbitration clauses are not uncommon in larger deals and contracts.
Incentives and barriers to entry
Are there any incentives for investment in the automotive market? Are there barriers to entry into the market? What impact may new entrants into the market have on incumbents?
Among the factors that may be considered as an incentive to invest in Mexico is its geographic location as neighbour to the world’s largest vehicle market, the low cost of the workforce, the high-level degree of specialisation of Mexican labour and the extensive network of free trade agreements, among others.
There are incentives such as tax privileges granted to companies operating under IMMEX programmes, providing many tax and administrative benefits such as avoidance of the general import tax and value added tax payment, value added tax refunds, reduced customs fees and simplified import and export declarations.
Other incentives can be found in the form of sectorial promotion programmes, which through their application may reduce most-favoured-nation import duties. These programmes support 22 different sectors, including the automotive and auto parts sectors. They also enable manufacturers to import their inputs at preferential tariffs to ensure they remain competitive. Most automotive inputs can be imported duty-free thanks to this programme. Additionally, companies that comply with all regulations contained in the ‘eighth rule’ (licence issued by the Ministry of the Economy) may access a mechanism that allows such companies to import materials, inputs, parts and components using a zero per cent rate.
Several Mexican states such as Sonora and Yucatan have developed their own policies and benefits for the industrial sectors that can be translated into several benefits and incentives for investors. These measures include reductions in real estate prices and taxes, discounts or reductions of payroll taxes and even employee training programmes.
Federal and state governments are actively attracting automotive manufacturers into Mexico, providing additional benefits that should be analysed on a case-by-case basis.
Product safety and liability
Safety and environmental
What are the most relevant automotive-related product compliance safety and environmental regulations, and how are they enforced? Are there specific rules for product recalls?
Technical and quality standards regarding safety and emissions that must be met for the Mexican market are contained in NOMs. Some of the most relevant NOMs include:
- NOM-194-SCFI-2015 will be regulating minimum security measures for new light vehicles, including provisions on the technical requirements for many parts of the vehicle such as tyres, ABS, braking lights, reverse lights, evaluation methods and verification procedures. This NOM will become fully enforceable by 2019;
- NOM_042_SEMARNAT_2003, NOM_044_SEMARNAT_2006 and NOM-076-SEMARNAT-1995 regulate vehicle emissions such as the maximum emission levels for vehicles, evaluation methods and verification procedures; and
- NOM-079-SEMARNAT-1994 and NOM-082-SEMARNAT-1994 regulate the maximum noise level for vehicles and the evaluation method thereof.
There are also regulations on security measures such as marking of doors and frames so that the vehicle is equipped with adequate and accessible information to protect consumer rights and avoid theft. Additionally, there are many safety measures regulating technical specifications on seatbelts, tyres, brakes and other vehicle parts in order to protect consumers from bodily harm. These standards are generally issued in such a manner as to be aligned with international regulations. Manufacturers must be frequently updated on any new NOMs and additional requirements for them to comply and be able to continue business operations.
As an outstanding environmental measure there is the ‘Hoy no Circula’ programme, which prohibits driving certain vehicles on certain days, depending on the results that such vehicles achieved in a mandatory contaminants emissions test. This measure only applies to the Mexico City Metropolitan Area.
Recalls are handled by the Consumer Protection Bureau through the issuance of a non-binding recall request the relevant party to recall certain products. These recall requests are standard and in case of non-compliance the consumer protection authority may assist the affected parties in filing suit. Additionally, manufacturers may recall defective products, which is common in big-scale recalls with a global reach.
During the first semester of 2017, several auto-makers recalled an estimated 667,000 vehicles through the the Consumer Protection Bureau - a 323 per cent increase in comparison with figures from 2016 and a new historical record.
Product liability and recall
Describe the significance of product liability law, and any key issues specifically relevant to the automotive industry. How relevant are class actions or other consumer litigation in product liability, product recall cases, or other contexts relating to the automotive industry?
Product liability law in Mexico for defective products is based only on the fault of the manufacturer or any other person in the production chain whose actions or omissions result in damage. If direct damage is not caused, and there is no direct link between the damage and the alleged guilty party, it will be difficult to support liability claims.
Mexico’s civil law considers product liability as an extra-contractual obligation. The law states that whoever has acted illegally or against good custom and caused damage to another is bound to repair the damage caused. Therefore, liability can only be imposed if damages were caused by such violation. The state does not operate any schemes of compensation for particular products but consumers may be able to file a claim if the defective product damages the individual and causes civil liability. These events are ruled by the Civil Code (federal or local).
Mexican law does not provide an obligation to recall defective products. But there are many companies with recall policies for defective products or failures which are used as a quality standard and a practical measure to prevent future damages to consumers.
Although the Mexican legislation does not foresee recalling products as necessary, failure to do so may result in a possible liability claim based on negligence. A possible defence against any liability claims exists if the accused party can prove it has complied with all legal and technical specifications for a product.
In such regard, collective actions are available in Mexico to prosecute consumer clams; these type of actions may also be brought directly by governmental agencies such as the Consumer Protection Bureau.
What competition and antitrust issues are specific to, or particularly relevant for, the automotive industry? Is follow-on litigation significant in competition cases?
Mexico is considered as one of the most competitive countries in this market. In terms of the automotive industry there are well over 40 brands with a presence in Mexico and around 1,500 auto parts companies.
In competition matters, the 2014 Federal Economic Competition Law, along with an amendment to the Constitution, created a new Federal Economic Competition Commission. Even though this relatively new commission follows the legal framework established by the previous one on monopolistic practices, some changes have been introduced regarding defining entry barriers to competition and access to essential raw materials. Even though the new Competition Commission has been very aggressive with its investigations and fining activities in other industrial sectors, there have as yet been no major competition litigation related to the automotive industry in Mexico.
Cooperation between the competition enforcement agencies of Canada, the United States and Mexico has continued to strengthen, and Mexico’s participation in joint investigations has increased. If a company is being investigated by one of these countries for a possible antitrust violation, its conduct and statements could also be reported and investigated by the authorities of the other countries.
There are annual trilateral meetings of the aforementioned countries with the objective of ensuring and improving cooperation and coordination of antitrust policies and their enforcement.
Dispute resolution mechanisms
What kind of disputes have been experienced in the automotive industry, and how are they usually resolved? Are there any quick solutions along the supply chain available?
Disputes in the Mexican automotive industry are often resolved through arbitration if an agreement includes such provision. If parties involved in the dispute are also NAFTA parties they often resolve their dispute through the provisions set forth in Chapter XI of said treaty (this Chapter is currently being discussed at the NAFTA negotiations and might be changed in the near future). Likewise, if parties are signatories to any other trade agreement that Mexico has entered into, an arbitration solution may be available for them.
Mexican courts recognise and enforce awards obtained by these mechanisms; however, if such dispute resolution mechanisms are not available to them, the dispute must be resolved through the application of Mexican law by the competent courts and may not be as quick as arbitration.
Finally, Mexican courts do not enforce remedies such as injunctions or other equitable remedies except for preliminary relief specifically enumerated in the Commercial Code, as well as stay of execution of the claimed act (similar to injunctions or stop orders) in amparo proceedings. Mexican courts do not award damages other than actual, direct and immediate damages and lost profits, and may not enforce judgments awarding them.
What is the process for dealing with distressed suppliers in the automotive industry?
As mentioned above, to strengthen the supply chain, tier 1 and 2 companies and OEMs are generally clustered near assembly plants. Nevertheless, sometimes supply interruptions can arise and adversely impact operations and organisations. Therefore, a first important step to avoid these scenarios is for manufacturers to be aware of the status, finance and reputation of their suppliers.
Although there are no legally established processes for this situation (other than bankruptcy laws), generally speaking it is recommended for the manufacturer to consider three main preventive activities regarding its suppliers:
- reviewing information such as financial statements and analysing internal performance and price trends in order to develop a risk profile of each supplier;
- identifying issues such as distinguishing troubled suppliers from healthy ones and determining most likely areas of distress; and
- analysing and, if necessary, undertaking different options such as changing supplier (if alternative suppliers are an option and an efficient transition is commercially feasible), investing or acquiring said supplier, developing efforts with the supplier to improve communication and material process flows or creating an inventory stock to be used as a reserve.
We recommend having provisions included in the agreements entered into by manufacturers and suppliers that cover scenarios in which the supplier is distressed or failing. Obligations for suppliers to ensure an efficient transition to a new provider are common practice in similar agreements. NAFTA notably contains certain regional value content specific to the automotive industry, so that manufacturers with a high North America export rate must be careful to comply directly, and through their suppliers, with such regional content to keep exporting into the United States and Canada.
Intellectual property disputes
Are intellectual property disputes significant in the automotive industry? If so, how effectively is industrial intellectual property protected? Are intellectual property disputes easily resolved?
The current state of IP protection in Mexico is an ongoing concern. The legal system is sometimes considered inefficient and violations are punished with weak penalties. Therefore, it is highly recommended for automotive companies to aim for appropriate protection of IP rights upon doing business in Mexico.
Although registering IP rights in another country may offer some benefits, foreign protection does not always extend to Mexico. As such, to ensure and duly protect IP rights, such property must be registered and enforced under Mexican law.
Local legal advice is needed when licensing and transferring technology or any IP right in order to prepare the agreements and fully protect IP from unauthorised use; franchising is a growing option to be considered.
Trade unions and work councils
Are there specific employment issues that automotive companies should be aware of, such as with trade unions and works councils?
The right to work in Mexico is protected by the Constitution, specifically articles 5 and 123. The Federal Labour Law broadly regulates all main topics contained in article 123 of the Constitution and is also responsible for regulating all labour aspects between employers and workers, including establishing minimum rights in order to protect workers.
Many entities decide to establish an operating company that will own all relevant assets and actually undertake business operations, along with a services company that ‘houses’ the employees, which in turn is engaged by the operating company (in such a way that the employees are subcontractors of the operating company). This structure generally allows for the operating company to limit their profit sharing obligations to which employees are entitled to receive on a yearly basis, and limits labour-related contingencies for the operating company. Recent legislation on the matter has included three important conditions which, if not complied with, result in the contractor being deemed as jointly liable with the employer for purposes of labour and social security provisions:
- the subcontractor activities may not cover all of the activities, the same or similar as a whole, taking place in the workplace of the contractor;
- subcontracted activity must be justified by its specialised nature; and
- the subcontractor’s activity should not contemplate the same or similar tasks conducted by the rest of the workers of the contractor.
Also, the law provides for alternative types of labour relationships such as by season, probation period, initial training and indefinite contract for fixed and periodic tasks, among others. Regarding the working week, a six-day, 48-hour working week is standard. Overtime pay is required if this level is exceeded (double pay for up to nine hours of overtime and triple pay for overtime of more than nine hours).
Among the main rights enjoyed by employees are holidays, paid leave after one year of service, holiday bonuses, and an annual bonus equivalent to at least two weeks’ pay. Employers are responsible for these additional costs, which can add 30 to 35 per cent to an average salary.
Other relevant obligations of employers are: compliance with safety, health and environment regulations and Mexican NOMs; mandatory handicapped access for entities with over 50 employees; obligation to make publication for employees of the full text of the collective bargaining agreement that may exist in larger companies; information of employees of the risks and dangers associated with their activities in the workplace; confirmation of paternity leave; and the establishment of policies avoiding harassment and discrimination.
Pursuant to the Federal Labour Law at least 90 per cent of the employees of a Mexican entity must be Mexican nationals, excluding directors, managing directors and general managers. Therefore, foreign personnel shall not exceed 10 per cent of the total number of workers in a Mexican company.
Finally, trade unions in Mexico have significant influence over the labour market. The Federal Labour Law protects the right of workers to associate without prior authorisation and provides the framework to create a trade union. In order for unions to be valid and in force they must be registered with the labour authorities or with the Ministry of Labour. As a result of having labour unions, collective negotiations and agreements are signed with the representatives of unions and the employer. The primary goals of collective bargaining agreements are to achieve better working conditions such as to achieve a rise in wages and fringe benefits.
In practice, employees may be forced to have their workers unionised. This may occur when a trade union discovers that any given entity is not a party to a collective bargaining agreement, and may then demand that they are contracted with. For such purposes, it is common to have ‘white unions’, which are practically dormant but comply with such requirement, instead of having active unions, which may cause complications depending on the nature and intent of such union.
What are the most important legal developments relating to automotive technological and mobility advances?
As a result of rising fuel prices and high pollution levels, the development of new automotive technologies has experienced growth. Although the acquisition by consumers of vehicles equipped with new technologies is somewhat limited by their relative high prices, the Mexican government has supported consumers by creating many incentives to encourage them to buy these types of vehicles.
In Mexico sales of hybrid and electric cars are not abundant, but they are growing. The Mexican Association of the Automotive Industry has reported that between January and November 2017 9,177 units were sold nationwide, which reflects a 28.3 per cent increase in comparison with the figures for the same period year on year. While in November alone this vehicle segment sold 909 units, only 31 of those were electric.
Among some of the governmental incentives to acquire these types of vehicles is an exemption from the new vehicle federal tax for hybrid and electric vehicles. The Federal Electricity Commission also has developed several measures to foster these vehicles such as the installation of a different type of domestic measuring device for billing purposes, as well as preferential rates on electricity consumption. Regarding local government support, the regulations of some states include exemptions on the ownership and use local tax. These vehicles are generally not affected by the ‘Hoy no Circula’ programme or subject to emissions verification processes.
Finally, the Trump administration in the United Sates has taken certain steps to attempt to maintain automotive manufacturers and manufacturing jobs within the United States. While still unclear, those measures could possibly disrupt the deeply integrated supply chain in North America. Those initial actions resulted in Ford cancelling a US$1.6 billion plant scheduled to be built in San Luis Potosí, Mexico. At the same time, however, entities such as BMW and Toyota, among others, have ratified their plans to expand their manufacturing capabilities in Mexico, and several Chinese manufacturers have expressed serious intentions of investing (or increasing their investment) in Mexico.
Update and trends
Trends and new legislation
Are there other current legal developments, emerging trends or pending legislation relevant to the automotive industry that should be noted?
As a result of the ‘America First’ initiative being pushed by the Trump administration in the United States, the United States withdrew from the Trans-Pacific Partnership (TPP), which would have created a free trade zone accounting for approximately 40 per cent of the world’s economy, and would have significantly eased access to the markets of the signatory countries. Although the TPP would have certainly helped to increase the further development of the automotive industry in Mexico by opening additional trade destinations, the remaining countries decided to push on and signed the TPP-11 (minus the United States) on 8 March at a ceremony held in Chile. Although not as massive as the original TPP, the new TPP-11 creates a free trade bloc accounting for 15 per cent of the world’s global trade, and will benefit 500 million people spread around the 11 signatory countries. It is expected that the TPP-11 will increase competitiveness of the signatory countries, create better work and health standards, and open new options for the Mexican market, which will become an even more attractive country for both domestic and foreign vehicle manufacturers.
As part of the ‘America First’ efforts to maintain automotive manufacturers and manufacturing jobs within the United States, a new proposal has been presented by the United States, by which the regional content of vehicles manufactured in the NAFTA region (for passenger cars) would increase to 85 per cent, from its current 62.5 per cent, of which 50 per cent must be manufactured in the United States specifically; this request has not been agreed to or welcomed by the Mexican and Canadian governments, and remains an important sticking point in the continuing negotiations. It is in fact a non-starter for a meaningful outcome.
The original uncertainty created by the measures proposed by the Trump administration has slowly faded. The fundamentals of the industry and the tangible benefits for the United States of creating a competitive environment in North America have surfaced with great force. Yet to be seen is how the political promises find their way into reasonable decisions that do not hurt the automotive success story for all three countries that are party to NAFTA.
The continuing NAFTA negotiations (including items such a US-proposed ‘sunset clause’ that is also unacceptable) remain an item of concern for the Mexican automotive industry, as NAFTA has created one of the largest and most interconnected supply chains in the world, which would be disrupted or compromised should the NAFTA discussions fail to reach a consensus between the three countries.
As an alternative and a ‘hedge’, Mexico has continued to engage other countries and has plans to enter into more economic integration agreements to offset the national dependency on the North American market.