On 28 December 2023, the decree which amends, supplements, and abrogates certain provisions of the Mexican Securities Market Law (Ley del Mercado de Valores) y and the Law of Investment Funds (Ley de Fondos de Inversión), was published in the Official Gazette (Diario Oficial de la Federación), and entered into force on the following day to its publication, i.e., on 29 December 2023.
The decree establishes that the Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) (”Ministry”), with the prior opinion of the National Banking and Securities Commission (Comisión Nacional Bancaria y de Valores) (CNBV) and Banco de México, shall issue within a period of no more than 365 days, from the date of its publication, secondary general provisions, regarding sustainable development, in order to strengthen corporate governance, adoption of best market practices and gender equality in corporations, issuers and other participants that operate within the Mexican securities market. The latter was already anticipated in the Sustainable Financing Mobilization Strategy, published by the Ministry on 18 September 2023, which establishes deadlines and goals for the issuance of sustainability regulations, with the aim of continuing with the mobilization of green public and private, equity, aligned with international commitments on climate change, assumed by the Mexican government.
With the issuance of these provisions, Mexico will become one of the first Latin American country to establish sustainable development regulatory obligations.
With the incorporation of Article 9 Bis to the Securities Market Law, it is expected that the Ministry, CNBV and Banco de México will issue secondary provisions establishing obligations regarding sustainable finance development. The regulated entities include stock exchange corporations, stock investment promotion corporations, issuers, simplified issuers, brokerage firms, stock exchanges, securities depository institutions, central securities counterparties, price providers, companies that manage systems to facilitate securities transactions and securities rating agencies.
In the case of stock corporations, whose business is focused on sustainability, the possibilities of obtaining financing are currently very limited due to the lack of financing sources focused on products with environmental, social and governance criteria. Therefore, as part of the reform of the Securities Market Law, a simplified option is proposed to allow small and medium-sized companies to access the different financing instruments at an affordable cost, thus giving more dynamism to the Mexican securities market by providing more options for the placement of capital with a sustainable focus. It is expected that, along with the secondary provisions, the Ministry will issue the corresponding guidelines to facilitate the granting of loans and guarantees to green and sustainable companies, as well as guidelines for the development of internal corporate governance programs for companies wishing to obtain this type of financing.
Likewise, the decree refers to the promotion of sustainability throughout the adoption of gender equality policies in the stock market sector, which will also be developed by the Ministry based on these secondary provisions, thus promoting the inclusion of women in the Mexican financial system.
It is expected that based on these regulatory modifications, the transition of green capital will continue to provide a welcoming environment and a more transparent and innovative source of financing for any sustainable project.
What is expected from the upcoming regulation?
The Mexican authorities in charge of issuing the secondary general provisions for sustainable finance, are still in a preparatory stage, however this process has certain similarities with the one followed by the vast majority European countries, mainly with the case of Spain. The Law 11/2018, by which the Spanish Parliament amended the Commercial Code and the Capital Companies Law, was the first regulation that established obligations related to sustainability reporting, specifically developing provisions related to the disclosure of financial and non-financial information, information on environmental issues, the consideration of pollution indexes, criteria for the implementation of the circular economy and waste management, as well as the disclosure of strategies on internal social issues related to the personnel working in such companies.
In Mexico, the Sustainable Financing Mobilization Strategy anticipates some of the issues that will be developed by the new regulations. This document considers, first, the implementation of the measures and internal mandatory controls for companies which are listed on the Mexican stock market to create a sustainability committee that should inform their boards of directors of a possible social, governance and environmental risks to which they are exposed. Likewise, it establishes the need to create a reporting system, similar to the one disposed within the Spanish Law 11/2018, in which information on the management of economic and accounting resources and the results of their investment are disclosed. On the other hand, in environmental matters, the Sustainable Financing Mobilization Strategy establishes the need for companies to incorporate a climate scenario analysis in order to know the financial and fiscal impact that a climate catastrophe could have in their business. Such analysis should be progressively aligned with the Mexican Sustainable Taxonomy, published in March 2023, which defines and classifies, within 6 different sectors, what type of economic activities should be considered sustainable, as well as their impacts and risks.
Although the amendment to the Securities Market Law only provides in Article 9 Bis the obligation of the local authorities to issue the general provisions, it does not provide further details on its content. However, there is already an international market standard within the international stock market sector to which these regulations must adhered to. Likewise, there are certain documents published by the Ministry, the CNBV and Banco de México that establish certain recommendations for companies, listed on the Mexican Stock of Exchange, to adopt sustainable practices that they could follow as a model, in order to anticipate the new upcoming obligations, which will certainly be subject to sanctions, in the event of non-compliance.
The incorporation of sanctions has been replicated in various international legal systems, mainly within the countries of the European Union, the United Kingdom, the United States and, and more recently, Australia, which has published certain regulations that include sanctions to prevent listed companies from engaging in “greenwashing”, an unfair practice which implies that a company or institutional investor provides false information or assurances to the authorities, for reputational reasons.
Even though that the aforementioned documents show a market standard, for the time being, it is not possible to anticipate to the catalog of sanctions that may probably bring with it; however, it would be important for the Mexican regulator, to incorporate them gradually, to move faster towards to a more sustainable and competitive economy.
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At Baker McKenzie Mexico we are prepared to provide any advice you may require in connection with any issue related to the new provisions. We remain at your service.