MEXICO Law and Practice Contributed by: Alejandro Sainz, Gabriela Avendaño and Daniel Pardo, Sainz Abogados
tion through any means that the judge, the inspector, the bankruptcy conciliator, or the liquidator consid - ers appropriate; and (iii) the co-ordination of the pro - cedures that are being processed simultaneously in respect of the same debtor. Article 305 does not say anything about enforcing foreign orders in Mexico or granting recognition to foreign proceedings in Mexico. 6.6 Foreign Creditors The concurso proceeding is a fair and collective pro - ceeding that provides for just treatment of all holders of claims against or interests in the estate, including foreign creditors. Specifically, Article 290 of the LCM provides that foreign creditors shall have the same rights as Mexican creditors. All creditors of the debtor, whether domestic or for - eign, shall have access to the concurso procedure, and shall collect in equal proportion (according to the class) from the assets located within the territorial jurisdiction of the court. 7. Duties and Liability of Directors and Officers 7.1 Duties of Directors Directors are required to fulfil all obligations outlined in the company’s by-laws, including (i) managing the business with the same care as if they were owners, (ii) upholding the duty of loyalty, and (iii) maintaining the duty of care and diligence. Directors with a personal interest in any transaction involving the company must explicitly disclose the conflict of interest and refrain from participating in the transaction, while remaining fully bound by their duty of loyalty. The Concursos Law does not impose any additional duties on direc - tors, nor does it require them to file for insolvency when the company is in the zone of insolvency. 7.2 Personal Liability of Directors The Concursos Law does not provide for specific actions under which the owners/shareholders can be potentially liable to creditors. However, owners/share - holders may be potentially liable to creditors pursuant to the provisions of civil and criminal regulations.
The directors of a company that has not been declared insolvent by a competent court may not be liable for continuing to operate a company under financial dis - tress. However, the transactions related to the collec - tion of a creditor’s rights could be subject to review when the company is declared insolvent. In the event that the company is declared insolvent, directors engaging in any malicious act or conduct that caus - es the non-performance of the company’s payment obligations might be liable for civil actions or even potentially criminally liable, if those acts are proven to be fraudulent. The Concursos Law provides for events during which a director or managing officer will become liable to the debtor, for the benefit of the estate of the company in a concurso procedure, for any damages and losses of anticipated earnings caused by any unlawful decision they have made, provided they cause damage to the estate of the debtor that led to the insolvency of the company. This is regardless of any liability incurred by the director or managing officer under any other law. Unless good faith and compliance with the duties of care and loyalty can be evidenced, members of the board of directors, as well as relevant employees of the debtor, shall be liable for damages and losses due to the following activities: • voting in board meetings or making decisions regarding the estate of the debtor regardless of a conflict of interest; • favouring a shareholder or group of shareholders to the detriment of other shareholders; • obtaining, due to their position and without legiti - mate cause, direct or indirect economic benefits; • producing, publishing, providing or ordering infor - mation they acknowledge is false; • ordering or failing to register operations of the debtor or modifying the registry to conceal the real nature of the operations performed, affecting any element of the financial statements; • ordering or accepting the registration of false infor - mation in the debtor’s books; • destroying, modifying or ordering the destruction or modification of systems or accounting registries or the documentation on which these are based; and • in general, committing malicious or illegal acts.
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