October 11, 2013

The Trend Toward Piercing the Corporate Veil in Mexico

By Armando Quintana Freg

 

The most recent edition of the Mexico’s Weekly Federal Court Reporter (August 2013) notes that the Fifth Collegiate Court in Civil Matters for the First Circuit has issued multiple opinions on the subject of piercing the corporate veil of a Mexican entity. Such opinions show a new trend that establishes, in essence, that an entity’s corporate veil or shield of liability can be pierced when it can be shown that the use of such “business entity” is abusive, and that its sole purpose is to prejudice the rights of third parties. Business associations, whether their owners are other entities or individuals, have been a preferred vehicle to undertake speculative commercial activities. This is the case because of the advantages such business entities offer as vehicles for purposes of doing business, as opposed to doing business as an individual. When business is conducted through an individual, in the event of a default of a fiscal, commercial, labor or other obligation, the businessperson is personally liable and must respond with his/her personal assets, even though such personal assets have nothing to do with the business. One of the advantages of conducting speculative business activities by means of a business entity is that such are treated as separate legal persons, distinct and apart from the shareholders who own such companies, which have their own attributes and characteristics. This new trend adopted by the Fifth Collegiate Court is a novel approach, and interrupts the Mexican tradition of maintaining strict legal separation between business entities and their shareholders, which, as a consequence, opens the door to a field of study and reevaluation of the utilization of business entities for abusive purposes. The first precedent of piercing the corporate veil in Mexico corresponds to a binding jurisprudence decision published in 2008, in which this subject was discussed with respect to monopolistic practices. Now the Fifth Collegiate Court on Civil Matters for the First Circuit has reconsidered this and has issued a series of opinions relating to piercing the corporate veil in civil matters. Based on such, Mexico’s administrative and judicial authorities are analyzing the legality of the activities and purposes of companies that are utilized to abuse the legal separation between entities and their owners in order to carry out fraudulent activities or to avoid legal obligations, and appear to be seeking to avoid the undue advantages companies may have in affecting the rights of creditors, third parties, the public funds and/or society.


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Issue 117–October 2013