MEXICO Law and Practice Contributed by: Agustín Aguilar López, Carlos García Cueva and Joana Karime Novia Ibarra, Aziz & Kaye Business Law
If the judge concludes that these requirements are not met, the class action will be dismissed. Collective actions may be brought by communities of consumers or by companies that were directly or indirectly affected – such as direct competitors or businesses within the same value chain. 5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law In Mexico, there is a single antitrust statute – the FECL – which applies throughout the entire national terri - tory. The CNA has exclusive jurisdiction to enforce antitrust matters (in all sectors of the economy, includ - ing telecommunications and broadcasting, and only specialised federal antitrust courts are competent to hear claims for damages arising from anti-competitive conduct. The applicable laws governing the substantive reso - lution of the dispute and the procedural aspects of such claims are the Federal Civil Code and the Federal Code of Civil Procedures. The FECL does not provide for any discovery proce - dures; however, in the authors’ experience and follow - ing the US authorities’ practice, the now-extinct IFT and the COFECE have informally initiated requests with the characteristics of a discovery. It is worth noting that attempts by the previous com - petition authorities to carry out discovery proceedings have been unsuccessful, as economic agents have argued successfully that discovery is not recognised under Mexican law. In damages proceedings, however, parties may request the court to order the production of docu - ments held by any person, subject to certain limita - tions. Such requests may only be granted if: 6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure
• the documents are not protected by professional secrecy or considered private communications; and • the documents are relevant to the damages claim. 6.2 Legal Professional Privilege Legal professional privilege is a constitutional right, provided for in Article 16 of the Mexican Constitution. In this regard, the reformed FECL incorporates in its legal text a specific procedure to guarantee the pro - tection of communications between clients and their external lawyers. This regulatory provision represents an advance over the previous regime, in which the COFECE had established a procedure through regu - latory provisions. Nevertheless, the reformed FECL clarifies that legal professional privilege applies only to communications with external counsel; communi - cations with in-house lawyers are not protected. With the inclusion of Article 77 Bis, the mechanism for the classification and protection of information is given greater hierarchy, aligning this right with basic principles of due process and adequate defence. However, in the authors’ view, this exclusion of in- house counsel is legally questionable. Professional secrecy in Mexico is not governed by a single unified statute, but the broader legal framework recognises it as a guarantee tied to the fundamental right to a defence, without distinguishing between external and in-house lawyers. Neither the Constitution nor the reg - ulatory law implementing Article 5 of the Constitution draws such a distinction; the latter simply requires lawyers to keep confidential the facts they learn in the exercise of their profession, regardless of the type of engagement. This is reinforced in the criminal sphere: the National Code of Criminal Procedure guarantees the right to a defence through licensed counsel, recognises the accused’s right to confidential communication with their defence lawyer, and bars the seizure or eviden - tiary use of communications protected by professional secrecy, again without conditioning that protection on the nature of the lawyer’s contractual relationship with the client.
101 A NTITRUST LI T IGATI O N 2026
CHAMBERS.COM
Powered by FlippingBook