Cablegate: Mexico's 2008 Investment Climate Statement -- Part

DE RUEHME #0096/01 0141747
P 141747Z JAN 08





E.O. 12958: N/A
1 OF 2

REF: 07 SECSTATE 158802

This part one of a two part cable that provides text for the
2008 Mexico Investment Climate Statement.


Openness to Foreign Investment

Mexico is open to foreign direct investment (FDI) in most
economic sectors and has consistently been one of the
largest recipients of FDI among emerging markets. In recent
years, Mexico has become increasingly aware of its loss of
competitiveness relative to other emerging economies, notably
China and India, as it had failed to address serious crime
and safety issues or pass much needed reforms. Recent
government efforts against organized crime, as well as
successes in the reform agenda, have improved business
confidence, underpinning increases in foreign investment.
Mexico will have to continue this progress to regain
competitiveness as a FDI destination, particularly for
non-U.S. investors.

Foreign investment in Mexico has largely been concentrated in
the northern states close to the U.S. border where most
maquiladoras are located, and in the Federal District (Mexico
City) and surrounding states. The Yucatan peninsula,
historically an area for tourism investment, has seen
industry in other sectors grow due in part to the ability to
quickly send goods from its ports to the United States.
Financial services, automotive and electronic sectors have
received the largest amounts of FDI. Historically, the United
States has been the largest source of FDI in Mexico. As of
September, U.S. investors had provided 50.4 percent of 2007

On June 13, 2007, President Calderon created ProMexico, a
federal entity charged with promoting Mexican exports around
the world and attracting foreign direct investment to Mexico.
Through ProMexico, federal and state government efforts as
well as related private sector activities, are coordinated
with a goal of harmonizing programs, strategies and resources
aimed at common objectives and priorities while supporting
the globalization of Mexico's economy. ProMexico maintains
an extensive network of offices abroad as well as a
multi-lingual website (
which provides information on establishing a corporation,
rules of origin, labor issues, owning real estate in Mexico,
the maquiladora industry, and sectorial promotion plans,
among other topics.

The Secretariat of Economy (SECON) also maintains a bilingual
website ( offering an array of
information, forms, links and transactions. Among other
options, interested parties can download import/export permit
applications, make on-line tax payments, and chat with
on-line advisors who can answer specific investment and trade
related questions. State governments have also passed small
business facilitation measures to make it easier to open

Despite progress however, according to a World Bank study, it
takes on average 27 days to complete all paperwork required
to start a business in Mexico; compared to an average OECD
figure of 15 days. The Embassy advises potential investors to
contact ProMexico for detailed information on investing in

The 1993 Foreign Investment Law is the basic statute
governing foreign investment in Mexico. The law is consistent
with the foreign investment chapter of NAFTA (the North
American Free Trade Agreement). It provides national (i.e.
non-discriminatory) treatment for most foreign investment,
eliminates performance requirements for most foreign
investment projects, and liberalizes criteria for automatic
approval of foreign investment.

The Foreign Investment Law identifies 704 activities, 656 of
which are open for 100 percent FDI stakes. There are 18
activities in which foreigners may only invest 49 percent; 13
of which require Foreign Investment National Commission
approval for a 100 percent stake; 5 reserved for Mexican
nationals; and 10 reserved for the Mexican state. Below is a
summary of activities subject to investment restrictions.


MEXICO 00000096 002 OF 007


A) Petroleum and other hydrocarbons;
B) Basic petrochemicals;
C) Telegraphic and radio telegraphic services;
D) Radioactive materials;
E) Electric power generation, transmission, and distribution;
F) Nuclear energy;
G) Coinage and printing of money;
H) Postal service;
I) Airports;
J) Control, supervision and surveillance of ports and


A) Retail sales of gasoline and liquid petroleum gas;
B) Non-cable radio and television services;
C) Credit Unions, Savings and Loan Institutions, and
Development Banks;
D) Certain professional and technical services;
E) Domestic transportation for passengers, tourism and
freight, except for messenger or package delivery services.

U.S. and Canadian investors generally receive national and
most-favored-nation treatment in setting up operations or
acquiring firms. Exceptions exist for investments for which
the Government of Mexico recorded its intent in NAFTA to
restrict certain industries to Mexican nationals. U.S. and
Canadian companies have the right under NAFTA to
international arbitration and the right to transfer funds
without restrictions. NAFTA also eliminated some barriers to
investment in Mexico, such as trade balancing and domestic
content requirements. Local governments must also accord
national treatment to investors from NAFTA countries. Mexico
is also a party to several OECD agreements covering foreign
investment, notably the Code of Liberalization of Capital
Movements and the National Treatment Instrument.

Approximately 95 percent of all foreign investment
transactions do not require government approval. Foreign
investments requiring applications and not exceeding USD 165
million are automatically approved, unless the proposed
investment is in a sector subject to restrictions by the
Mexican constitution and Foreign Investment Law that reserve
certain sectors for the state and Mexican nationals (see
Table 1). The National Foreign Investment Commission
determines whether investments in restricted sectors may go
forward and has 45 working days to make a decision. Criteria
for approval include employment and training considerations,
technological contributions, and contributions to
productivity and competitiveness. The Commission may reject
applications to acquire Mexican companies for national
security reasons. The Secretariat of Foreign Relations (SRE)
must issue a permit for foreigners to establish or change the
nature of Mexican companies.

Despite Mexico's relatively open economy, a number of key
sectors in Mexico continue to be characterized by a high
degree of market concentration. For example, the
telecommunications, electricity, television broadcasting,
petroleum, beer, and tortilla sectors feature one or two or
several dominant companies (some private, others public) with
enough market power to restrict competition. The Mexican
Congress strengthened the enforcement powers of the Federal
Competition Commission (CFC) in 2006 and is considering
stiffer penalties for anti-competitive conduct, but the CFC
remains weak relative to its OECD counterparts in terms of
enforcement. CFC Commissioner Eduardo Perez Motta and
leading members of the Calderon Administration, including the
President, have publicly committed to opening up the Mexican
economy to greater competition. For more information on
competition issues in Mexico visit CFC,s bilingual website


The Mexican constitution reserves ownership of petroleum and
other hydrocarbon reserves for the Mexican state. Oil and gas
exploration and production efforts are under the sole purview
of Pemex, Mexico's petroleum parastatal. The constitution
also provides that most electricity service may only be
supplied by two state-owned companies, the Federal
Electricity Commission (CFE) and Central Power and Light

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(LYFC). There has been some opening to private capital.
Private electric co-generation and self-supply are now
allowed. Private investors may build independent power
projects but all of their output must be sold to CFE in
wholesale transactions. Private construction of generation
for export is permitted. In 1995, amendments to the Petroleum
Law opened transportation, storage, marketing and
distribution of natural gas imports and issued open access
regulations for Pemex's natural gas transportation network.
Retail distribution of Mexico's natural gas is open to
private investment, as is the secondary petrochemical
industry. Since the government's announcement in August 2001
that national and foreign private firms will be able to
import liquefied petroleum gas duty-free, one LNG terminal
has begun operation in Tamaulipas state, a second is under
construction in Baja California, and CFE plans to build a
third in Manzanillo, on Mexico's Pacific Coast.

Finance Public Works Contracts (COPFs), formerly Multiple
Service Contracts (MSCs) designed to comply with the
country's constitution, mark Mexico's most ambitious effort
to attract private companies to stimulate natural gas
production by developing non-associated natural gas fields.
Under a COPF contract, private companies will be responsible
for 100 percent of the financing of a contract and will be
paid for the work performed and services rendered. However,
the natural gas produced in a specific field remains the
property of Pemex. Examples of work that contractors can
perform include seismic processing and interpretation,
geological modeling, fields engineering, production
engineering, drilling, facility design and construction,
facility and well maintenance, and natural gas transportation
services. Some Mexican politicians still oppose COPFs as a
violation of the Mexican constitution's ban on concessions.
Some contracts have failed to attract any bids, demonstrating
the limited success of COPFs.


Mexico allows up to 49 percent FDI in companies that provide
fixed telecommunications networks and services. This includes
the Cable TV (CATV) industry, with one exception: companies
can issue Neutral or "N" stocks up to 99 percent, which can
be owned by a foreign company. In fact, one CATV company
operates under this ownership scheme. There is no limit on
FDI in companies providing cellular/wireless services.
However, Telmex and Telcel (America Movil continue to reign
as the dominant telecom fixed and wireless powers and wield
significant influence over key regulatory and government
decision makers. Mexico's dominant landline and wireless
carriers are traded on the New York Stock Exchange.

Several large U.S. and international telecom companies are
active in Mexico, partnering with Mexican companies or
holding minority shares. Following a 2004 WTO ruling,
international resellers are authorized to operate in Mexico
and some companies are also looking to sell wholesale minutes
to resellers. Telcel (technically independent, but majority
owned by Telmex owner's Grupo Carso - Carso Global Telecom)
still retains a majority share (about 75 percent) of the
cellular market. However, Spain's Telefonica Movistar, among
others, continues to grow and challenge the status quo. They
have deployed extensive mobile infrastructure to increase
coverage across the country. ;

Telmex continues to dominate the market in Long Distance
(local and international), Internet access through DSL, and
bundle services. The Convergence Accord, published in October
2006, allowed Telmex to offer broadcasting or TV services.;
However, the Federal Telecommunications Commission ruled that
Telmex must first comply with interconnection,
interoperability and number portability requirements before
receiving permission to complete its triple-play offering.
The accord has elicited strong concerns from the CATV
industry, which fears that it will push CATV operators to
consolidate. Under the accord, CATV operators (including TV
duopolist Televisa's Cablevision) are allowed to
independently offer Triple Play Service (VoIP-Telephony,
Data-Internet and TV-Video), which might increase competition
in the telephony market.

As in telecommunications, there are concerns that the two
dominant television companies - Televisa and TV Azteca, who
share duopoly status in the sector - continue to exercise
influence over Mexican judicial, legislative and regulatory

MEXICO 00000096 004 OF 007

bodies to prevent competition. However, in August 2007 the
Mexican Supreme Court ruled against the most blatant
anti-competition measures of the April 2006 Radio and
Television Law. Among other decisions, the Court ruled that
it was unfair for broadcasting companies to keep and use at
no cost analog spectrum freed from the digitalization
process. Currently the Mexican Legislature is working on a
new media law based on the Supreme Court's ruling.
U.S. firms remain unable to penetrate the Mexican television
broadcast market, despite the fact that both Televisa and TV
Azteca benefit from access to the U.S. market.

Real Estate

Investment restrictions still prohibit foreigners from
acquiring title to residential real estate in so-called
"restricted zones" within 50 kilometers (approximately 30
miles) of the nation's coast and 100 kilometers
(approximately 60 miles) of the borders. In all, the
restricted zones total about 40 percent of Mexico's
territory. Nevertheless, foreigners may acquire the effective
use of residential property in the restricted zones through
the establishment of a 50-year extendible trust (called a
fideicomiso) arranged through a Mexican financial institution
that acts as trustee.

Under a fideicomiso the foreign investor obtains all rights
of use of the property, including the right to develop, sell
and transfer the property. Real estate investors should,
however, be careful in performing due diligence to ensure
that there are no other claimants to the property being
purchased. Fideicomiso arrangements have led to legal
challenges in some cases. U.S. issued title insurance is
available in Mexico and a few major U.S. title insurers have
begun operations here. Additionally, U.S. lending
institutions have begun issuing mortgages to U.S. citizens
purchasing real estate in Mexico.


The Mexican government allows up to 49 percent foreign
ownership of 50-year concessions to operate parts of the
railroad system, renewable for a second 50-year period. The
Mexican Foreign Investment Commission and the Mexican Federal
Competition Commission (CFC) must approve ownership above 49
percent. In a positive sign for competition, the CFC recently
struck down a proposed merger between two of the three major
railroad companies.; The decision has been appealed.;
Consistent with NAFTA, foreign investors from the U.S. and
Canada are now permitted to own up to 100 percent of local
trucking and bus companies, however, several companies have
encountered long wait times and legal tie-ups when trying to
obtain permits.

CINTRA, the government holding company for the Mexican
airline groups, Mexicana and Aeromexico, sold Grupo Mexicana
to Grupo Posadas in December 2005.; Grupo Aeromexico was
sold to a consortium led by Citibank-owned Banamex in October
2007. The emergence of low-cost domestic airlines such as
Volaris, Click Mexicana, and Interjet have increased
competition and led to lower prices. However, foreign
ownership of Mexican airlines remains capped at 25 percent.
Foreign ownership in airports is limited to 49 percent.
;Foreign express delivery service companies continue to
complain that Mexican legislation unfairly favors Mexican
companies by restricting the size of trucks international
carriers are allowed to use.;


Mexican infrastructure investment, with certain previously
noted exceptions, is open to foreign investment. The Mexican
government has been actively seeking an increase in private
involvement in infrastructure development in numerous
sectors, including transport, communications, and
environment. Improvement in the national infrastructure is
seen as a key element in strengthening economic
competitiveness and attracting investment to disadvantaged
regions of the country. In July 2007, President Calderon
presented the National Infrastructure Program 2007-2012 a key
aspect of which is an increase in private investment through
means of Service Lending Projects (public-private

MEXICO 00000096 005 OF 007

partnerships) and concessionary schemes. The Office of the
President provides an English language copy of the plan at:

Conversion and Transfer Policies

Mexico has open conversion and transfer policies as a result
of its membership in NAFTA and the OECD. In general, capital
and investment transactions, remittance of profits,
dividends, royalties, technical service fees, and travel
expenses are handled at market-determined exchange rates.
Peso/dollar foreign exchange is available on same-day, 24-
and 48-hour settlement bases. Most large foreign exchange
transactions are settled in 48 hours. In June 2003, the U.S.
Federal Reserve Bank and the Bank of Mexico announced the
establishment of an automated clearinghouse for cross-border
financial transactions. The International Electronic Funds
Transfer System (TEFI) began operating in 2004 and
commissions on transfers through the system have dropped

Expropriation and Compensation

Under NAFTA, Mexico may not expropriate property, except for
a public purpose and on a non-discriminatory basis.
Expropriations are governed by international law, and require
rapid fair market value compensation, including accrued
interest. Investors have the right to international
arbitration for violations of this or any other rights
included in the investment chapter of NAFTA.

There have been twelve arbitration cases, of which two are
still pending, filed against Mexico by U.S. and Canadian
investors who allege expropriation, and other violations of
Mexico's NAFTA obligations. Details of the cases can be found
at the Department of State Website, Office of the Legal
Advisor (

Dispute Settlement

Chapter Eleven of NAFTA contains provisions designed to
protect cross-border investors and facilitate the settlement
of investment disputes. For example, each NAFTA Party must
accord investors from the other NAFTA Parties national
treatment and may not expropriate investments of those
investors except in accordance with international law.

Chapter Eleven permits an investor of one NAFTA Party to seek
money damages for measures of one of the other NAFTA Parties
that allegedly violate those and other provisions of Chapter
Eleven. Investors may initiate arbitration against the NAFTA
Party under the Arbitration Rules of the United Nations
Commission on International Trade Law ("UNCITRAL Rules") or
the Arbitration (Additional Facility) Rules of the
International Center for Settlement of Investment Disputes
("ICSID Additional Facility Rules"). Alternatively, a NAFTA
investor may choose to use the registering country's court

The Mexican government and courts recognize and enforce
arbitral awards. The Embassy has heard of no actions taken in
the Mexican courts for an alleged Chapter 11 violation on
behalf of U.S. or Canadian firms.

There have been numerous cases in which foreign investors,
particularly in real estate transactions, have spent years
dealing with Mexican courts trying to resolve their disputes.
Often real estate disputes occur in popular tourist areas
such as the Yucatan. American investors should understand
that under Mexican law many commercial disputes that would be
treated as civil cases in the U.S. could also be treated as
criminal proceedings in Mexico. Based upon the evidence
presented a judge may decide to issue arrest warrants. In
such cases Mexican law also provides for a judicial official
to issue an "amparo" (injunction) to shield defendants from
arrest. U.S. investors involved in commercial disputes should
therefore obtain competent Mexican legal counsel, and inform
the U.S. Embassy if arrest warrants are issued.

Performance Requirements and Incentives

The 1993 Foreign Investment Law eliminated export
requirements (except for maquiladora industries), capital
controls, and domestic content percentages, which are
prohibited under NAFTA. Foreign investors already in Mexico
at the time the law became effective could apply for

MEXICO 00000096 006 OF 007

cancellation of prior commitments. Foreign investors who
failed to apply for the revocation of existing performance
requirements remained subject to them.

The Mexican federal government has eliminated direct tax
incentives, with the exception of accelerated depreciation. A
fiscal reform package was passed in September 2007 that
includes a Flat Rate Corporate Tax (IETU). This tax limits
the deductions that companies are allowed, though changes
made at the behest of the business community still allow some
credits for previous inventories and investments, as well as
for companies that fall under the maquiladora scheme.
Investors should follow IETU developments closely.

Most taxes in Mexico are federal; therefore, states have
limited opportunity to offer tax incentives. However, Mexican
states have begun competing aggressively with each other for
investments, and most have development programs for
attracting industry. These include reduced price (or even
free) real estate, employee training programs, and reductions
of the 2 percent state payroll tax, as well as real estate,
land transfer, and deed registration taxes. Four northern
states - Nuevo Leon, Coahuila, Chihuahua and Tamaulipas -
have signed an agreement with the state of Texas to
facilitate regional economic development and integration.
Investors should consult the Finance, Economy, and
Environment Secretariats, as well as state development
agencies, for more information on fiscal incentives. Tax
attorneys and industrial real estate firms can also be good
sources of information.

U.S. Consulates have reported that the states in their
consular districts have had to modify their incentive
packages due to government decentralization. Many states have
also developed unique industrial development policies.
Sonora, for example, is working to expand the free entry area
for tourists (south from the border to the port of Guaymas.)
Sonora is one state that has implemented long-term
agriculture and infrastructure development plans. The
government of Yucatan provides information and support to
potential investors and business entrepreneurs through
several programs that target different industries such as
technology, agroindustry and energy exploration. Several
states are competing to attract manufacturing in the
aerospace industry.

There is a government-owned development bank, Nacional
Financiera, S.A. (, which provides loans to
companies in priority development areas and industries. It is
active in promoting joint Mexican-foreign ventures for the
production of capital goods. Nacional Financiera offers
preferential, fixed-rated financing for the following types
of activities: small and medium businesses; environmental
improvements; studies and consulting assistance;
technological development; infrastructure; modernization; and
capital contribution. The Mexican Bank for Foreign Trade,
Bancomext, offers a variety of export financing and promotion
programs (

Mexico has two programs to stimulate manufactured exports -
maquiladora and PITEX (Program for Temporary Imports to
produce Exports) - that largely operate in the same manner.
The first is focused on companies that specialize in in-bond
manufacturing and export, while the second is for companies
that may have significant domestic sales. In November 2006,
the maquiladora and PITEX programs were combined into the
renamed IMMEX (Industria Manufacturera, Maquiladora y
Servicios de Exportacion) program. The IMMEX program adds
services, such as business process outsourcing, to the
maquila scheme and also simplifies and streamlines the
processes under the two previous schemes. The new program
continued to exempt companies from import duties and
applicable taxes (e.g. VAT) on inputs and components
incorporated into exported manufactured goods. In addition,
capital goods and the machinery used in the production
process are tax exempt, but are currently subject to import
duties. Companies interested in investing in industrial
activity in Mexico need to follow the new IMMEX guidelines
closely, preferably in close consultation with locally based
legal advisors. Please refer to the Secretariat of Economy's
IMMEX program website at:

In order to maintain competitiveness of maquiladora and PITEX
companies and comply with NAFTA provisions, since 2001 Mexico
has applied "Sectoral Promotion Programs" (PROSEC). Under
these programs, most favored nation import duties on listed

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inputs and components used to produce specific products are
eliminated, or reduced to a competitive level. These programs
comply with NAFTA provisions because import duty reduction is
available to all producers, whether the final product is sold
domestically or is exported to a NAFTA country. Currently
there are 22 PROSECs, including electronics and home
appliances, automotive and auto-parts, textile and apparel,
footwear, and others. The lists of inputs and components
incorporated under each PROSEC are not exhaustive, and the
Mexican government regularly consults with industries to
include more goods.

In the last three years the Secretariat of Economy conducted,
in partnership with the private sector, 12 studies, called
"Programs for Sectoral Competitiveness", of the country's
most important sectors according to their levels of exports,
employment and FDI. Studies covering the electronics,
automotive, textile, maquiladora, leather and footwear, and
software sectors are currently available at the website of
the Secretary of Economy (

Right to Private Ownership and Establishment

Foreign and domestic private entities are permitted to
establish and own business enterprises and engage in all
forms of remunerative activity in Mexico, except those
enumerated in Section 1 Table 1. Private enterprises are able
to freely establish, acquire and dispose of interests in
business enterprises. The two most common types of business
entities are corporations (Sociedad Anonima) and limited
partnerships (Sociedad de Responsibilidad Limitada). Under
these legal entities a foreign company may operate an
independent company, a branch, affiliate, or subsidiary
company in Mexico. The rules and regulations for starting an
enterprise differ for each structure.

Corporation Limited Liability Company
(Sociedad Anonima) (Sociedad de Responsibilidad

Can be up to 100 Can be up to 100
percent foreign-owned. percent foreign-owned.

Must have a minimum of Must have a minimum of
50,000 Mexican pesos in 3,000 Mexican pesos in
capital stock to start. capital stock to start.

Must have minimum of 2 Must have a minimum of 2
shareholders, with no partners to incorporate a
maximum. Board of corporation with limited
Directors can run the liability. The partners
administration of the must manage the company.

The enterprise has an Exists only while there is a
indefinite life business purpose and partners
span. remain the same.

Free transferability Restricted transferability of
of stock ownership is partnership shares. Any changes
permitted. in the partnership composition
may cause the partnership to be

Operational losses If structured properly, it may
incurred by the offer tax advantages by
Mexican entity or allowing operational losses
subsidiary may not be incurred by the Mexican entity
used by the U.S. to be used by the U.S. parent
parent company. company.

Limited liability to Limited liability is afforded
shareholders. to the partners.


Text continued in part 2.

Visit Mexico City's Classified Web Site at and the North American
Partnership Blog at /

© Scoop Media

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