CLIENT ALERT
APRIL 8TH, 2020.
1.-FORCE MAJEURE: INTERNATIONAL LAW (WORLD HEALTH ORGANIZATION "WHO").-
1.1. Whereas the WHO is an international organism, and therefore Mexico is part of the international treaties, health determination must be fulfilled and considered. Not complying to those will lead to their default and breach of the international judicial order. 1.2. Mexico on March 30th, 2020 has therefore declare an emergency for force majeure with different legal consequences that we will explain briefly.
2.- EMERGENCY ALERT FOR FORCE MAJEURE PUBLICIZED IN THE OFFCIAL GAZZETE, ON MARCH 30TH , 2020. 2.1.- NON ESSENTIAL ACTIVITIES DETERMINED BY THE MEXICAN GOVERNMENT.
Immediate suspension on NON ESSENTIAL ACTIVITIES (others that are not mentioned in the essential list herein) from March 30th, 2020 to April 30th, 2020, in order to mitigate and avoid dispersion of virus SARS-CoV2 (hereinafter “Suspension Period”). 2.2. ESSENTIAL ACTIVITIES DETERMINED BY THE MEXICAN GOVERNMENT.- Only the following activities are considered Essential; (i)Those for the National Health System, (ii) Pharmacy and Pharmaceutical Industry, (iii) Medical Instruments and related to biological waste treatment, (iv) public security, national security and civil protection, (v) legislation and courts, (vi) economic and financial activities (banks, tax system / SAT, gas stations and distribution ,water distribution), (viii) agro-alimentary industry, groceries, markets and supermarket, (ix) Courier service (Fedex, DHL, etc..), (x) public childcare and old people`s home (other public services and institutions related to vulnerable sectors), (xi) telecommunications and media, (xii) funeral and cremation services, (xiii) cold products chain , (xiv) logistics (airports, ports and trains), (xv) other industries that could have irreversible impacts for its suspension, (xvi) Social services related to social programs, (xvii) others related to maintaining critical infrastructure and repair of systems related to water distribution, electricity and gas, hospital services, public transportation, etc..
3. VOLUNTARY CONFINEMENT 3.1. There is a public request to remain home and avoid all activities not considered essential (described in 2.1. and 2.2.), both for national and foreign currently in Mexico. The confinement is mandatory to people older than 60 years , pregnant and those with special(vulnerable) medical conditions.
3.2. After the suspension period the federal government will be indicating by sector the areas that will be restored to normal activities. 4. ADDITIONAL SECURITY MEASURES ARE SUGGESTED IN COMMERCIAL SPACES AND PROPERTIES.
4.1. The individuals and companies under the Non Essential activities shall determine all security measures/ and conditions to avoid theft and other criminal acts.
5. EMPLOYEES COMPENSATION. 5.1. Art. 42 bis and 429 of the The Federal Labor Law stipulates if under sanitary contingency the employer will indemnify the employee with what the federal labor courts determine and shall be no more than one month of ordinary salary. The problem is that there are no courts working during the suspension period, unless this is later modified, and for the moment this has been left opened to negotiate between employee and employer, always under the maximum of one month of ordinary salary and minimum wage ($123.22 Pesos) (hereinafter “labor legal margin”) 5.2. Although there is uncertainty on the lack of labor courts determination(s) (and also the fact the sanitary contingency as the Labor Law stipulates has not been clearly determined) as the communication of the Emergency Alert and Suspension Period has been determined by the Health Authorities and not Labor Courts , and therefore current notices could be challenged constitutionally for lack of authority, the important advice is to take not that employers shall preserve the work, respect the voluntarily confinement of non-essential activities, promote fair social and economic equilibrium, and reach fair agreements with employees determining the Employees Compensation during the Suspension Period (and beyond if conditions persist) within the Labor Legal Margin and legal work conditions.
6. LEGAL TERMS INTERRUPTION.
6.1. QUINTANA ROO-PLAYA DEL CARMEN (SOLIDARIDAD)-TULUM.- Federal, Administrative and Local Court Authorities have suspended all legal terms (and work) and have declared that those days will be considered non-working days:
Federal / Supreme Court and Administrative Courts: 18/03/2020 – 19/04/2020. 6.2. Tulum(Local): the President of Tulum suspended all legal terms from March 30th, 2020 to April 6th, 2020. (it shall will be extended to April 30th, 2020, it has not been confirmed). The State of Quintana Roo confirmed as non-working days April 1st, 2020 – April 17th, 2020, and until further notice, also all states shall fulfil at least the Suspension Period until April the 30th, 2020. 6.3. SEDETUS (DESARROLLO URBANO/ URBAN DEVELOPMENT) Quintana Roo State authority for Urban Development (construction permits and others) determined as of on April 1st, 2020 that all construction activities in the State, which have not been listed on the essential activities as described on 2.1. and 2.2. herein, in compliance with Federal Determinations, shall be SUSPENDED, during the Suspension Period determined for the moment from March 30th, 2020 to April 30th, 2020. 7. PRIVATE CONTRACTS (LEASE) WITH PERIODICAL OBLIGATIONS.-
7.1. Force Majeure is defined in the Quintana Roo Civil Code and Judicial Precedents, as to an event that is unavoidable and has legal effects like inapplicability of contractual penalties in contracts (Art. 295, C.C.QROO). Therefore some contracts make reference to a force majeure impediment as a legal excuse to a timely fulfillment of the contract, most construction contracts could be “suspended” and restored back when the contingency is over. 7.2. For Lease Contracts, Art. 2698 C.C.QROO determines that if the use of the leased property is blocked the lessee will have the right to request , judicially, the reduction of the rent and if the force majeure event persist for more than 2 months the early termination of the contract could be judicially requested. Most judicial precedents determine that the legal use of the property most be “fully blocked” and therefore the contracts must be study as to determine the “level” of impediment of the use of the property in lease and the particular conditions to each contract and obligations.
We hope this information clears some important questions to our clients, we remain at your disposal for any further inquiry.
CARLA E. GIL
For More information, please contact our legal team:
SARA L. ROBLES
RAYMUNDO GIL
LUIS D. RUEDA