MEXICO Law and Practice Contributed by: Agustín Aguilar López, Carlos García Cueva, Claudio Catalán Arvide and Joana Karime Novia Ibarra, Aziz & Kaye Business Law
required to maintain professional secrecy are not obliged to present documents related to the party with respect to whom the professional privilege exists. 6.3 Leniency and Settlement Agreements Leniency and settlement agreements are protected by the reformed FECL, which establishes that the full benefit of the leniency programme may only be grant - ed to companies which apply to join before the formal initiation of the investigation. Those which do so later, and until the third extension of the investigation, will be able to access minor fine reductions. However, Article 103, applicable to leniency, does not clearly specify what is meant by “total benefit” and whether it implies exclusively to the exemption from administrative fines, or whether it also includes leniency from prosecution and the non-imposition of disqualification sanctions. In this regard, the law also establishes that Economic Agents and individuals who receive any of the benefits under this article will not be disqualified under Article 127 of the FECL and will not be subject to class actions filed by the CNA. This is without prejudice to actions that third parties may pursue. Given that uncertainty about these scopes can neu - tralise the incentives to join the programme, it will be essential for the CNA to define these aspects in its secondary regulations. It is worth noting that for the first 180 days of operation of the Commission, it will continue to do so under COFECE’s existing legal pro - visions until it issues its new regulatory framework. Regarding the Procedure for Exemption or Reduction of Fines, applicable to abuse of dominance or unlaw - ful merger cases, two scenarios are established: • if the application is filed before the Investigative Authority of the National Antitrust Commission orders a third extension of the investigation period, the applicant will be able to access the “full ben - efit” (not yet defined); and • if the application is filed during the Trial-Like Procedure, but before the integration of the file, a 50% reduction in the amount of the fine may be obtained.
As in the case of the leniency programme, it will be key that the regulations issued by the CNA clearly define the criteria, scope and specific benefits of each modality, to provide legal certainty to the companies interested in collaborating with the authority.
7. Witness and Expert Opinions 7.1 Witness Procedure
Testimonies are subject to examination and cross- examination. If someone refuses to testify, without reasonable cause, they may be fined or even subject to administrative arrest. While there are certain parameters for factual witness - es to be considered reliable, it is generally necessary for testimony to be bolstered by the existence of other evidence for factual witnesses to support liability for antitrust violations. 7.2 Expert Witness Role and Procedure Although the FECL allows expert witness opinions as evidence, in the authors’ experience, the Mexican competition authorities almost never give weight to such testimony. In practice, expert opinions are not treated as evidence that can support the arguments of the investigated party or help prove its position. Expert testimony is submitted in writing, responding to questions posed by companies, the competition authorities and prosecutors. In court, experts – who only need to demonstrate expertise in their field – present their opinions sepa - rately, and there are no alternative methods for pre - senting expert evidence. 8. Damages 8.1 Damages: Assessment, Passing On and Interest In Mexico, there have been no damages awards in antitrust cases, whether in individual or class actions. Moreover, current Mexican law does not provide for exemplary or punitive damages.
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