MEXICO Law and Practice Contributed by: Mauricio Moreno Rey, Anahí Serrano, Erick Sastré and Karla Fajardo, Cannizzo, Ortiz y Asociados, S.C.
closure of any industrial secret in a manner contrary to good industrial commercial and service customs and practices, that involves unfair competition. It may also be applied to any third party that acquires, uses or discloses an industrial secret if it knew, or had rea - sonable grounds to know, that the industrial secret was acquired in a manner contrary to such customs and practices. Outsourcing In 2021, a decree was published to amend labour, social security, and tax regulations, prohibiting the outsourcing of personnel, except for specialised ser - vices and/or specialised works not included in the corporate purpose or main economic activities of the beneficiary of such services. According to such provi - sions, outsourcing occurs when an employer provides or makes its personnel available to a third party, which benefits from the services rendered by such person - nel. The subcontracting of specialised services or works must be formalised through a written contract detailing the services or works and the approximate number of workers involved. If a contractor fails to meet its obligations to its workers, the hiring party will be jointly responsible. According to Article 15 of the Federal Labour Law, individuals or entities providing outsourcing services must be registered with a pub - licly available registry maintained by the Ministry of Labour and Social Welfare ( Registro de Prestadoras de Servicios Especializados u Obras Especializadas , or REPSE), and ensure they are up to date with their tax and social security obligations. The corresponding registration must be renewed every three years, and the Ministry of Labour and Social Welfare may deny or revoke registration at any time if those individu - als or legal entities fail to comply with the necessary requirements.
employment agreements or separate non-compete agreements. The consequence of breaching a non-compete clause is usually the obligation to compensate or indemnify the affected party. Regarding non-compete obliga - tions, it is important to keep in mind that in Mexico the protection of damages might be limited, contrary to what happens in other countries. In Mexico, it might be difficult to prove liability arising from a non-com - pete violation and the specific damages arising from this violation. Even when the violation and damages are proved, Mexican courts usually do not impose exemplary penalties or remedies as happens in other jurisdictions. Given the difficulty of evidencing before the judicial authority a causal relationship between the conduct performed – ie, the breach of a non-compete obliga - tion, and the damages suffered by the affected party, it is usual to include in non-compete agreements stipu - lations obliging the breaching party to pay a certain amount in the event of breach – ie, pre-quantified damages. The enforceability of this type of non-compete obli - gation is usually approached from two perspectives. • Constitutional: This is because such obligations have been considered a violation of the right to freedom of work. The Mexican Constitution states that no person may be prevented from perform - ing their choice of work, provided that it is lawful, except by means of a judicial resolution, and that any agreement by virtue of which an individual temporarily or permanently waives the right to pursue a certain profession, industry or trade may not be allowed. Therefore, it will be important to consider certain requirements and characteristics when drafting the non-compete obligations that employers may require, so that they do not consti - tute a waiver of the right to perform, throughout the national territory, any given profession, industry, work or trade. • Economic competition: This is because the obli - gation not to compete may be considered a monopolistic practice. Regarding this aspect, non- competition obligations will be valid when they are
2. Restrictive Covenants 2.1 Non-Competes
Non-compete clauses – ie, clauses included in a con - tract by which a person undertakes the obligation not to compete in a certain market or activity with another person – are not provided for in Mexican labour law; however, they may be agreed between the parties in
362 CHAMBERS.COM
Powered by FlippingBook