Recent Changes In The Mexican Practice To The Requirements Of Foreign Legal Entities-Granted Powers Of Attorney - Litigation - Mondaq Mexico - Mondaq Business Briefing - Books and Journals - VLEX 807620005

Recent Changes In The Mexican Practice To The Requirements Of Foreign Legal Entities-Granted Powers Of Attorney

Author:Selene M. Villafaña Robles
Profession:Becerril Coca & Becerril
 
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The Mexican legal system is extremely rigid and formal. Such strictness is shown with respect to the legal representation through Power of Attorney. The Mexican legislation establishes very specific requirements to ensure the validity of such document.

The Mexican Industrial Property Law establishes in section IV of article 181 the requirements for any Power of Attorney granted by a legal foreign entity to file a contentious procedure before the Mexican Institute of Industrial Property (IMPI). According with this paragraph the Power of Attorney will be valid in Mexico if it complies with the following:

1) The power of attorney is granted under the applicable legislation of the place in which it is granted; or

2) The power of attorney is granted in accordance with international treaties.

Additionally the provision sets specifically that, when the legal existence of the legal foreign entity in which name the power is being granted is certified in such Power of Attorney, as well as the right of the grantor to confer said power, the validity of the document shall be presumed in the absence of proof to the contrary.

In the past years, this article of the Law generated legal disputes regarding its judicial interpretation. In 1998 a Federal Circuit Court established a non-binding rule which expressly mentioned that the legislator used the term "or" to emphasize that the Power of Attorney granted by a legal foreign entity must be considered valid if the same is granted by the legislation applicable in the country of its origin or if it is granted under the rules of international treaties, not being necessary to fulfill both requirements.

In fact, if one of those two options was accomplished, it was understood that the Power of Attorney did not need any additional documents or evidence to demonstrate its validity.

A recent judicial decision issued by another Federal Circuit Court after the literal, historic and systematic interpretation of section IV of said Article 181 of the Industrial Property Law, has established a new non-binding rule which states that the representation of a foreign legal entity in a contentious proceeding at the IMPI must be demonstrated with a Power of Attorney, where it is mandatory that the legal existence of the legal foreign entity is certified, and that the grantor which confers said power has the right to grant it in order to be legally valid.

The Court has therefore determined the following:

  1. That it is not enough...

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