MEXICO Law and Practice Contributed by: Alejandro Mendiola Diaz, Pedro Isaac Alcalá Berhouague and Benjamín Uriel Salinas Morales, Nader, Hayaux & Goebel
does not distinguish between the two, as con - firmed by its 2021 regulatory provisions on the classification of privileged legal communica - tions. During a dawn raid or investigation, companies may request that certain documents be treated as privileged. The request must be noted in the official minutes of the visit, and the company has up to 20 business days after the conclusion of the raid to formally submit a written request. This request must include the following. • The type of document (eg, email, letter, memo). • The author’s name and date. • A description of the legal advice provided. • Proof that the legal adviser is authorised to practise law in Mexico or abroad. Once the agency determines that the informa - tion qualifies as privileged, it cannot use the content as evidence or assign it any legal value, regardless of whether it was labelled “Privileged and Confidential.” Labels are indicative, but not determinative. Other Legal Protections Individuals and companies also benefit from constitutional guarantees, including the follow - ing. • Due process, which prohibits searches or seizures without a duly supported legal order. • The presumption of innocence, which ensures that no party is presumed liable until a final administrative resolution is issued. A key protection is the right against self-incrim - ination, which has been explicitly recognised by the Mexican Supreme Court (SCJN) and federal courts beyond the criminal context. Individu -
als involved in cartel investigations – especially during testimonial appearances – may lawfully refuse to answer questions that would expose them to liability for anti-competitive conduct. This right protects both verbal and written state - ments and applies throughout the proceedings. The SCJN has held that the investigative pow - ers of COFECE do not override this right, and that failure to co-operate cannot be used as an indication of guilt. Specifically, the Court stated that while economic agents are required to col - laborate in investigations, the refusal to provide information that may be self-incriminating does not imply liability. Rather, the burden remains on the authority to prove its allegations using objec - tive evidence. These constitutional guarantees apply fully dur - ing dawn raids, interviews, and formal proceed - ings, and must be respected by the enforcement In general, individuals and companies tend to co-operate with Mexico’s competition authori - ties. However, there have been isolated cases in which economic agents have resisted or failed to comply with requests for information, obstruct - ed dawn raids, or delayed responses to formal requirements. Agencies may apply the following enforcement measures in case of non-cooperation: • Formal warning ( apercibimiento ). • Daily fines of up to USD16,600 per day of non-compliance. • The use of law enforcement or other public authorities. • Administrative detention of up to 36 hours. authorities at all times. 2.7 Non-Cooperation
208 CHAMBERS.COM
Powered by FlippingBook