Legal Formalism and Financial Myopia: The Judicial Misreading of Accredited Solvency
The Mexican banking system, like every other around the world, is built on the principle that banks do not operate with their own money. They intermediate resources, channeling public savings toward productive activity. In Mexico, the law acknowledges this reality in Article 86 of the Ley de Instituciones de Crédito (“LIC” — the law that regulates private banks), which clearly states: as long as a bank is not in liquidation or bankruptcy, it is presumed to be solvent and is therefore exempt from posting bonds or legal guarantees, including those required to obtain injunctions in amparo proceedings (the constitutional challenge of acts of authority). This principle is recognized across other jurisdictions as well. The intent behind provisions like Mexico’s Article 86 of the Credit Institutions Law — which deems banks financially solvent and relieves them from posting legal guarantees — is partly to avoid impeding the financial intermediary function with procedural hurdles. In essence, if a bank is known to be sound, requiring it to set aside cash in court is seen as an unjustified obstacle that “freezes” money meant to circulate. From a theoretical standpoint, the critique is clear: capital that is static is not performing its economic function. Money tied up as a legal safeguard is analogous to money hoarded under a mattress — during that time, it finances no productive activity. Yet in courtrooms across Mexico, judges routinely ignore this article. Banks are stripped of the very legal presumptions meant to facilitate their operation. The result is not just doctrinal inconsistency — it is economic dysfunction. A legal system that hampers the circulation of money, stifles liquidity, and contradicts the very policy goals the law seeks to uphold. What is troubling is not only the frequency of this judicial misreading, but its justification. Some courts argue that Article 86 must yield to Article 132 of the Ley de Amparo, which outlines general rules for granting suspensions and requiring guarantees. But this reading ignores the nature of Article 86 as a specific financial norm — one embedded in a regulatory framework that presumes bank solvency as a matter of public interest. It is not merely a procedural exception; it is a recognition of the systemic role of banks. This dissonance reveals a deeper problem in legal interpretation. When judges treat banks like any other party, they fail to see the function of the financial system as a whole. They elevate the symmetry of litigation over the asymmetry of economic roles. Banks, unlike ordinary parties, are vessels of liquidity. Requiring them to immobilize capital in the form of bonds or deposits is not just unnecessary — it is counterproductive. The money is not theirs to hold; it is theirs to circulate. Some may argue that this exemption gives banks an unfair advantage. But the rationale behind Article 86 is not institutional favoritism — it is system preservation. Solvent banks are presumed to be reliable precisely so they can continue performing their role in the economy. If courts undermine this presumption, they inadvertently weaken the safeguards built into the law. And in doing so, they confuse equality before the law with blindness to institutional purpose. There is also a striking irony in how courts handle risk. While the financial system operates with fine-tuned models of systemic risk, judges approach Article 86 with a kind of abstract suspicion. They demand guarantees not because there is a credible threat to the public interest, but because they view legal uniformity as a higher value than functional solvency. The result is a regime where legal formality eclipses financial logic. This judicial posture betrays a failure of interpretation. Legal norms must be read in context — not only in their doctrinal setting, but in their institutional and economic purpose. Article 86 is not a procedural footnote; it is a financial norm designed to keep the wheels of credit turning. If judges do not apply it accordingly, they risk turning legal instruments into dead letters — norms that say one thing but mean nothing in practice. What is most concerning is not merely that courts have failed to apply the law in light of banks’ role in the economy — it is that not a single judicial opinion has examined the actual purpose of the norm. None has asked why Article 86 exists, or how its underlying rationale connects to financial function. This absence of analysis reveals a troubling gap: a lack of financial understanding not only among judges, but also among litigants, who have failed to frame the issue accordingly. If lawyers do not argue the economic logic behind the norm — and courts do not inquire into it — the legal system ends up applying banking law without grasping banking reality. The result is interpretation in a vacuum, where formal process is preserved, but substantive coherence is lost. To restore coherence, courts must shift their lens. They must understand that when banks are required to post guarantees, the cost is not borne by the institution — the economy bears it. The capital that should be fueling investment is diverted into procedural limbo. And the courts, far from protecting justice, become unwitting obstacles to financial flow. In a country where liquidity is precious and the rule of law is fragile, the judicial system cannot afford to misread the function of the norms it applies. Article 86 is not ambiguous. Its meaning is clear. What remains is for judges to read it not just legally, but economically.
The Imperative Need to Regulate Investment in Sustainable Water Infrastructure
In a world where water scarcity is becoming increasingly critical, investing in sustainable infrastructure is crucial for ensuring water security and promoting sustainable development. Water management faces significant challenges, ranging from aging infrastructure to increasing demand due to population growth and urbanization. These challenges require immediate and coordinated action among governments, businesses, and communities to ensure a future where water is an accessible and sustainable resource. The current legal framework, such as Mexico’s National Water Law, establishes general principles for water management, but legal gaps and challenges persist in the effective implementation of policies that promote water sustainability. Jurisprudence has set important precedents in the protection of aquifers and liability for pollution, but it is necessary to complement these advances with more effective public policies that incentivize investment in sustainable infrastructure. Sustainable water infrastructure offers significant economic, social, and environmental benefits. By improving water use efficiency and reducing losses from leaks, financial resources can be saved and private investment can be attracted, stimulating local economic growth. Additionally, it ensures equitable access to potable water, improving public health and the quality of life of communities. From an environmental perspective, it promotes water reuse and recycling, reducing pressure on natural resources and minimizing pollution. However, water scarcity has devastating consequences in the medium and long term. It can cause health problems, negatively impact the economy by affecting sectors such as agriculture and manufacturing, and lead to forced migrations. According to the WHO, approximately 829,000 deaths from diarrhea are related to the consumption of contaminated water each year. Furthermore, droughts and water scarcity can increase food prices and reduce employment in key sectors, exacerbating poverty and inequality. Regulatory Challenges in Mexico and Latin America. One of the main obstacles to investing in sustainable water infrastructure in Mexico and Latin America is the weakness of institutions and the lack of an adequate regulatory framework. In Mexico, water management is affected by corruption and lack of investment, weakening the country’s ability to efficiently manage its water resources. Additionally, the absence of a regulatory framework aligned with national realities hinders equitable and efficient water management. In Latin America, challenges include inadequate infrastructure and pollution, which further complicate water management. The ECLAC has highlighted the need to improve water management in the region, addressing issues such as lack of investment in infrastructure and institutional weakness. To address these challenges, it is crucial to implement effective policies that foster public-private partnerships, incentivize the adoption of green technologies, and promote community participation in planning and executing projects. Education and awareness about the importance of water and its sustainable management are fundamental to ensuring that communities are involved and committed to protecting this vital resource. In conclusion, investing in sustainable water infrastructure is an imperative necessity to ensure a resilient future in the face of current climate and economic challenges. It is time to prioritize this investment and work together to build a future where water is an accessible and sustainable resource for all generations.
Brazil’s Tax Reform: A New Era for Consumption Taxes and International Investment
Brazil has recently embarked on a significant journey of tax reform, culminating in the approval of Constitutional Amendment No. 132/2023. This landmark legislation introduces sweeping changes to the country’s consumption tax regime, with profound implications for both domestic and international businesses. This article delves into the key elements of this reform, analyzing its potential impacts on international investments in Brazil from a business-oriented perspective, and addressing the implications of the newly enacted Selective Tax (Imposto Seletivo) for specific sectors. The Old System: A Labyrinth of Complexity Brazil’s previous consumption tax system was notoriously complex, characterized by a multitude of overlapping taxes levied at the federal, state, and municipal levels. This intricate web included: • Federal Taxes: PIS (Program for Social Integration), COFINS (Contribution for the Financing of Social Security), and IPI (Tax on Industrialized Products). These taxes were levied on different tax bases, with varying rates and exemptions, creating a significant compliance burden for businesses. The PIS and COFINS, for instance, were levied on gross revenue, while the IPI was levied on the manufacturer’s sale price. This lack of harmonization often led to double taxation and cascading effects. • State Tax: ICMS (Tax on Circulation of Goods and Services). This tax was a major source of revenue for states, but its complexity and varying rates across states created significant distortions in the market. Furthermore, the ICMS was often subject to interstate disputes and tax competition, adding to the uncertainty and complexity for businesses operating nationally. • Municipal Tax: ISS (Tax on Services). This tax was levied on a wide range of services, with varying rates and exemptions across municipalities. The lack of uniformity in the ISS regime created significant compliance challenges for businesses operating in multiple municipalities. This fragmented system resulted in cascading taxes, high compliance costs, and significant distortions in economic activity, ultimately hindering investment and economic growth. Businesses operating in Brazil faced a tremendous administrative burden in navigating this complex tax landscape, diverting resources from productive activities. The New Regime: A Unified and Streamlined Approach The tax reform introduces a dual Value Added Tax (VAT) system, replacing the existing patchwork of consumption taxes: • CBS (Contribution on Goods and Services): A federal VAT managed by the federal government. This tax will be levied on the value added at each stage of the production and distribution chain, with a broad tax base and limited exemptions. • IBS (Tax on Goods and Services): A state-level VAT jointly managed by states and municipalities. This tax will also be levied on the value added, with states and municipalities sharing the revenue according to a pre-defined formula. This shared administration aims to reduce interstate tax competition and promote greater harmonization in the tax system. In addition to the dual VAT system, the reform introduces a new Selective Tax (Imposto Seletivo), a federal tax aimed at discouraging the consumption of goods and services deemed harmful to health or the environment. This tax will be levied on specific products, such as tobacco, alcoholic beverages, and sugary drinks, with the objective of promoting healthier lifestyle choices and reducing the negative externalities associated with these products. This combination of a dual VAT system and a Selective Tax aims to simplify the tax structure, reduce compliance burdens, and promote more responsible consumption patterns, fostering a more efficient, transparent, and socially responsible tax environment. Key Features and Potential Impacts on International Investment 1. Simplified Tax Structure: The consolidation of multiple taxes into a dual VAT system and the introduction of a Selective Tax will significantly reduce complexity and compliance costs for businesses, making Brazil a more attractive destination for international investment. Businesses will no longer need to navigate the intricate web of different taxes, rates, and exemptions. This simplification will free up resources for productive activities and reduce the administrative burden on businesses. 2. Elimination of Cascading Taxes: The VAT system’s inherent mechanism of crediting input taxes against output taxes eliminates the cascading effect of taxes, reducing the overall tax burden on businesses and promoting investment. This mechanism ensures that goods and services are taxed only once throughout the production and distribution chain, avoiding the accumulation of taxes on taxes. 3. Increased Neutrality: The new system aims to create a more neutral tax environment, minimizing distortions in investment decisions and promoting economic efficiency. By applying a uniform tax rate across sectors and stages of production, the VAT system avoids favoring specific industries or activities, encouraging a more efficient allocation of resources. 4. Transitional Rules: The reform includes transitional rules to ensure a smooth implementation process, mitigating potential disruptions to businesses and facilitating adaptation to the new system. These rules provide a gradual transition period, allowing businesses to adjust their systems and processes to the new tax regime. This phased implementation aims to minimize disruptions and provide certainty for businesses during the transition. 5. Impact on Specific Sectors: While the reform generally benefits businesses, certain sectors may face specific challenges. For instance, the financial services sector, currently subject to a specific regime under ISS, will transition to the IBS, potentially impacting their tax liabilities. Careful analysis and planning are crucial for businesses in these sectors to navigate the transition effectively. Similarly, sectors that currently enjoy tax benefits under the old system may see those benefits reduced or eliminated, requiring adjustments to their business models. o Impact of the Selective Tax: The introduction of the Selective Tax will have a significant impact on industries producing or importing goods subject to this tax. Companies operating in sectors such as tobacco, alcoholic beverages, and sugary drinks will need to carefully assess the impact of this tax on their pricing strategies, profitability, and overall business operations. They may need to consider adjusting their product portfolios, supply chains, and marketing strategies to adapt to the new tax landscape. 6. Tax on Digital Services: The reform explicitly includes digital services in the tax base for both CBS and IBS, ensuring that international providers of digital services contribute their fair share to the Brazilian tax system.
BUSINESS-FOCUSED LEGAL STRATEGY: CRAFTING LEGAL SUPPORT THAT DRIVE CORPORATE SUCCESS
In the fast world of corporate decision-making, it is important to understand that a lawyer’s role extends beyond purely offering legal guidance. Today, lawyers who advise businesses must wear multiple hats, merging technical knowledge with a business-centrical approach. To succeed in this role, lawyers shall understand not only the law but also the intricate details of the business landscape, from marketing and product development to engineering and construction. The main goal of this article is to explores the crucial skills needed to provide effective legal advice in a corporate environment, highlighting three main pillars: (i) understanding the business; (ii) delivering concise and actionable advice: and (iii) being a creative yet consistent problem-solver. 1. Legal Advice Anchored in Business Understanding For lawyers advising companies, understanding the business is just as vital as understanding the law. When crafting legal advice, lawyers must look beyond technical jargon to grasp the core of the industry, understanding the “how” and “why” behind business strategies, products, and services. This depth of knowledge is not just a plus – it’s a necessity. A lawyer who understands the details of the company’s industry, environment, competitors and goals will be able to deliver advice that is not only legally sound but also relevant to the business context. For instance, advising a technology company on compliance should involve an understanding of the technology itself, the market pressures, and the key challenges that the company faces. This knowledge allows the lawyer to identify risks and opportunities more accurately, tailoring advice that truly supports the company’s goals and approaches. 2. Concise, Pragmatic Advice for Decision-Makers In the corporate world, business leaders don’t have time to read through pages and pages of legal analysis. They expect lawyers to be effective and efficient, with the presumption that if you’re at the table, you’re qualified. In other words, if a general counsel or a in-house counsel is being asked for an opinion, the leadership team assumes they’re already knowledgeable and capable. Extensive legal memos filled with technical terminology are less valuable in these environments. Instead, business leaders want answers that are straightforward, direct, and applicable to the real word. To be truly effective, a lawyer’s response should focus on three questions: A) Is this possible? If not, what are the risks? B) How can we make this feasible? C) Crystal clear, actionable answers allow leaders to make informed decisions quickly. If a project presents legal challenges, and almost all do, the lawyer’s role is to outline possible solutions that could mitigate or eliminate these obstacles. This proactive approach can turn a “no” into a “how,” aligning legal insights with the company’s business objectives and goals. 3. Creativity with Consistency and Technique An in-house lawyer advising a company must be creative, finding innovative solutions to legal challenges while observing a solid foundation of legal knowledge and technique. Legal creativity is not about ignoring regulations or taking risks blindly; it’s about applying the law in ways that enable a business decision of a project to succeed. For instance, if a business goal conflicts with current regulations, a creative lawyer may explore alternative approaches or work to adjust the business model to comply without compromising the company’s vision and the project goals. Creativity must be grounded in consistency. A lawyer must remain detailed and disciplined, ensuring that every innovative solution adheres to the law and maintains ethical standards. This good equation between creativity and technique helps legal advisors craft viable, long-term solutions that support business growth without exposing the company to undue risks. Conclusion Modern corporate lawyers and general counsels play a key role in bridging legal expertise and business strategy. By understanding the business deeply, delivering concise and pragmatic advice, and applying creativity with a solid foundation of technique, lawyers can act as true business partners. In my opinion, the best legal advisors are those who not only ensure compliance but also support and enhance the company’s objectives, facilitating growth and innovation. In the end, the corporate lawyer’s goal is to make complex legal matters simple and actionable for business leaders, empowering them to make decisions with confidence and clarity.
THE FUTURE IS NOW: IMPLEMENTATION OF TECHNOLOGICAL TOOLS IN LEGAL PRACTICE
In the past decade, artificial intelligence (AI), machine learning (ML), and automation have transformed numerous sectors, and the legal practice has been no exception. These technological advances are revolutionizing the way lawyers and law firms operate, presenting both significant opportunities and challenges. Therefore, it is essential to understand the global impact of these technologies on legal practice by analyzing the benefits, risks, and necessary measures to maximize their efficiency and security. I. The Transformative Impact on Legal Practice AI, ML, and automation are reshaping legal practice in various ways, affecting both operational efficiency and the quality of service that lawyers can offer their clients. 1. Automation of Repetitive Tasks One of the most evident applications of automation in the legal field is the ability to delegate repetitive and low-value tasks, such as document review, data management, and legal research, to algorithms and automated systems. This not only frees up time for lawyers to focus on higher-value tasks but also reduces human errors and improves accuracy in information management. In countries like the United States and the United Kingdom, cutting-edge law firms are already using automated systems to review contracts, conduct legal audits, and manage due diligence in mergers and acquisitions. The trend is also starting to show within the Latin-American countries but at a lower scale by the moment. These systems not only speed up the process but can also identify patterns and risks that might go unnoticed by humans. 2. Machine Learning and Predictive Analytics ML has introduced predictive capabilities into legal practice that allow lawyers to foresee outcomes with greater accuracy. ML algorithms can analyze vast amounts of historical case data to identify patterns and predict how a court might rule in a specific case. This is particularly valuable in areas such as litigation and dispute resolution, where predictive knowledge can influence legal strategies and decision-making. A prominent example of this application is the ability to predict the duration and cost of a legal case, helping lawyers and their clients to manage expectations and resources more effectively. Additionally, ML is also being used to detect fraud and assess risks, which is crucial in areas like financial law and regulatory compliance. 3. Artificial Intelligence in Drafting and Analyzing Documents Co-authorship: Rodrigo A. Ruiseñor and Kevin Pavón, Partners of Ruiseñor Nuñez y Asociados AI has proven to be a powerful tool in the drafting and analysis of legal documents. AI-based systems can review contracts and other legal documents with a speed and accuracy that surpass human capabilities. These systems can identify errors, omissions, and unusual clauses, ensuring that documents meet the necessary legal and contractual standards. II. Risks and Challenges Associated with Technology Despite the benefits, the adoption of AI, ML, and automation in legal practice also brings risks and challenges that must be addressed to ensure effective and secure implementation. 1. Data Security and Privacy The digitization and use of advanced technologies in the legal field raise significant concerns about data security and privacy. The sensitive nature of legal information means that any security breach can have serious consequences. AI and ML systems, which rely heavily on large volumes of data, are particularly at risk of being targeted by cyberattacks. In response, law firms must implement robust cybersecurity measures, including data encryption, multi-factor authentication, and continuous system auditing. Adopting security frameworks like ISO/IEC 27001, which sets requirements for information security management systems, is essential to protect sensitive data and ensure client trust. 2. Algorithmic Bias and Fairness Another major challenge is algorithmic bias. AI and ML systems are only as good as the data they are trained on. If the training data contains biases, the algorithms may perpetuate or even amplify these biases in their outcomes. This is particularly concerning in the legal field, where fairness and justice are fundamental. For example, in the context of criminal law, some risk assessment algorithms used to determine bail or sentencing have been shown to exhibit racial biases. It is imperative that law firms and technology developers work together to audit and mitigate biases in AI systems, ensuring that they are fair and equitable. 3. Ethics and Professional Responsibility The use of AI in legal practice also raises ethical questions about professional responsibility. Lawyers have an obligation to provide competent advice and representation, and delegating certain tasks to automated systems could complicate this obligation. Who is responsible if an AI system makes an error that negatively impacts a client? Co-authorship: Rodrigo A. Ruiseñor and Kevin Pavón, Partners of Ruiseñor Nuñez y Asociados Professional associations and regulatory bodies are beginning to address these issues, setting guidelines on the use of AI in legal practice. However, there is still a long way to go to establish a clear and universal ethical framework to address these challenges. III. Strategies to Maximize the Benefits of Technology Despite the challenges, there are several strategies that lawyers and law firms can adopt to maximize the benefits of AI, ML, and automation while mitigating the risks. 1. Continuous Education and Training To fully leverage new technologies, lawyers must be well-informed and trained in the use of these tools. Law firms should invest in continuous training programs that cover not only the technical skills needed to use AI and ML tools but also the ethical and legal aspects of their use. Training should also include an understanding of the risks associated with technology, such as algorithmic bias and privacy concerns, so that lawyers can make informed and responsible decisions. 2. Collaboration with Technology Developers Close collaboration between lawyers and technology developers is crucial to ensuring that AI and ML tools are tailored to the specific needs of legal practice. This involves not only participating in the design and development of these tools but also in the continuous auditing and monitoring of their performance. Law firms should also consider forming strategic alliances with legal tech companies that can provide access to cutting-edge technologies and specialized technical support. 3. Adoption of Regulations and Best Practices To address the risks associated with
An Indian perspective on celebrity and personality rights
The terms celebrity or famous personality connote recognition, notoriety and can even be understood as an accolade for achievement. Though by definition, celebrity means “the state of being famous”. Celebrities could be members of a royal family who inherited fame, athletes and artists who have prodigious talent or skill, even entrepreneurs and innovators who are creative and intelligent and politicians who are courageous and path-breaking. Just as there isn’t one kind of celebrity or a single path to attaining celebrity status, there is no exclusive approach or method of categorizing and protecting celebrity rights. Broadly celebrity rights fall in two categories: Publicity rights : to shield image from unauthorized commercial use, falling under the scope and ambit of inter alia intellectual property, contract law; Privacy : the right to be free from unwanted intrusion, engaging the domains of inter alia fundamental rights, data (personal sensitive information), technology, media laws. In India alone there are multiple statutes that lend credence to celebrity / personality rights and attempt to protect them: The Constitution: Article 21 of the Indian Constitution safeguards not just life but also personality rights. Article 19 plays a significant role in granting individuals the freedom of speech and expression, as demonstrated in the case of R Raja Gopal v State of Tamil Nadu (1994).1 This case highlighted that the Right to Privacy encompasses two distinct dimensions: ability to pursue legal action for violations of privacy, and the constitutional acknowledgment of the Right to Privacy. In the case of Shivaji Rao Gaikwad v. Varsha Production (2015)2, the Madras High Court heard a lawsuit initiated by actor Rajinikanth to safeguard his personality rights. Despite the absence of comprehensive codification in India, the courts duly acknowledged these rights in their rulings, encompassing elements such as the right to be forgotten. Intellectual Property Rights / Copyright: safeguards the rights of authors, performers, encompassing celebrities, granting them authority over the reproduction, distribution, and public presentation of their creations. Trade Marks and Domain names: Individuals who unlawfully utilize a name or misrepresent it, whether for profit or otherwise, can be held liable. Conversely, defense may be invoked if the actions were carried out under a genuine belief without malicious intent. If a Registrant of a domain intentionally seeks to exploit or damage the reputation of that person or entity for unjust gain, it constitutes cyber-squatting. Numerous precedents like Arun Jaitley, Madhuri Dixit. Information Technology Act: the IT Act prohibits morphing, prevents companies engaged in electronic media distribution from violating the confidentiality of individuals, including public figures and celebrities. The Indian Penal Code: this legislation deems certain behaviors as criminal offenses that could intrude upon an individual’s privacy, including stalking, trespassing, and defamation. Tort And Passing Off: passing-off is a legal remedy available for the tort of misappropriation of personality or celebrity rights. Apart from these statutes, various self-regulatory protocols have been formulated by industry organizations like the Advertising Standards Council of India. These protocols delineate standards for media entities regarding the treatment of celebrity images and likenesses. The right of publicity belongs solely to the individual, who has the exclusive right to profit from it. Established in ICC Development (International) Ltd v. Arvee Enterprises.3 In Phoolan Devi v. Shekhar Kapoor and Ors.4 the court emphasized the serious repercussions of distortion, endangering public image and exposing an individual’s private life to the public without adequate scrutiny. It was underscored that meticulous consideration is essential to safeguard the image and name of any celebrity, as these rights are enshrined in the Constitution. Recent Jurisprudence The Indian courts have time and again protected the personality rights of celebrities. In a recent case of Jackie Shroff v. The Peppy Store & Ors.5 the Court issued an order, restraining various entities from using Plaintiff’s name, voice, or image without his consent for commercial purposes. The court recognized celebrity status and observed that it is essential to balance freedom of expression of others with a celebrity’s rights to personality, publicity and moral integrity. In Anil Kapoor v. Simply Life India & Ors6 the Court issued an injunction safeguarding the personality rights of Bollywood actor Anil Kapoor. It prohibited multiple entities from exploiting his image, name, voice, or other facets of his persona for financial purposes without his authorization. While freedom of speech allows for commentary as satire and critique, when such expressions cross the boundary and harm or jeopardize the individual’s persona and associated elements, it is deemed unlawful. Another case which highlighted the issue of celebrity rights and privacy issues is Ms. Aaradhya Bachchan and Anr. v. Bollywood Time & Ors.7 The Court prohibited several YouTube channels from distributing, posting, or circulating videos or any fabricated material concerning the mental and physical well-being of Aaradhya Bachchan (daughter of Abhishek and Aishwarya Bachchan) in contravention of contravened the Information Technology Intermediary Guidelines and Digital Media Ethics Code Rules. Conclusion In today’s digital age, where information disseminates rapidly and its outreach is amplified, the intersection of publicity and privacy rights present intricate challenges. Striking a balance between the desire of public figures to manage their image and their right to personal privacy remains a formidable task amidst this evolving landscape. Protecting personality rights cannot be fully addressed by existing intellectual property rights systems. The unique nature of personality rights presents compatibility issues with gaps in laws governing copyright, passing off, and trade marks. As a distinct legal concept, personality rights can neither be accommodated nor protected within existing statutory framework of fundamental rights and intellectual property laws. The inherent nature of celebrity and personality rights is dynamic, which demand a progressive and flexible approach from the Judiciary as well as an evolving and informed approach by the Legislature.
Challenges and Opportunities in Brazil’s Carbon Market: The Importance of Human Rights Due Diligence
Carbon credits are akin to receipts that verify reductions in greenhouse gas emissions, such as CO2. Imagine planting a tree as depositing money in a bank: the tree captures CO2 from the atmosphere, and this “deposit” is recorded as a carbon credit. Companies with high CO2 emissions can purchase these credits to offset their emissions, thereby incentivizing environmental preservation. This idea gained traction with the Kyoto Protocol, which established emission reduction targets for developed countries. The Paris Agreement, in turn, expanded this initiative, encouraging all countries to set ambitious targets to combat climate change. To achieve these goals, one of the most effective mechanisms is the carbon market. Brazil, with its vast territory and rich biodiversity, aims to take a significant and necessary step in the fight against climate change by creating a regulated carbon credit market. Bill 2148/151, currently under consideration in the Federal Senate, establishes the Brazilian Emissions Trading System (SBCE), creating a regulated market that can help reduce emissions and promote the transition to a low-carbon economy. According to McKinsey2, Brazil holds approximately 15% of the world’s potential for carbon capture through forest restoration. The demand for carbon credits in Brazil is projected to reach between 90 and 220 million tons of CO₂ equivalent by 2030. Regulation, when implemented, will be welcome. In the meantime, transactions have been carried out in the voluntary carbon market, known as REDD+, which faces significant integrity issues, including double counting, lack of independent verification, and insufficient benefits for local communities. A case that exemplifies the complexities and challenges of the carbon market in Brazil is that of the Pará State Government. Recently, the state signed a historic agreement to sell nearly R$1 billion in carbon credits. However, this operation has sparked debates regarding the lack of consent from indigenous populations and local communities in relation to these projects. The Pará State Public Defender’s Office has pointed out that some projects were implemented without proper authorization and did not bring social benefits to residents. Due Diligence in Human Rights in the Carbon Market Given these challenges, the incorporation of human rights due diligence (HRDD) emerges as a fundamental tool to strengthen the integrity and sustainability of the carbon market. One of the major challenges of the voluntary carbon market concerns the transparency of the credits it trades, which ultimately impacts the final price of the credits. HRDD consists of a systematic process of identifying, assessing, and mitigating the risks of human rights violations throughout the value chain of carbon credits. By conducting due diligence, companies, investors, organizations, certification bodies, and governments can identify and prevent negative impacts of their projects, strengthen their reputation, and contribute to building a more just and equitable carbon market. HRDD, as advocated by the UN Guiding Principles on Business and Human Rights, establishes the need to verify, monitor, and mitigate potential adverse impacts on human rights that may occur in the development of carbon projects. In the case of carbon credits, HRDD must include prior, free and informed consultation with affected communities, as required by ILO Convention 169. This ensures that these communities can participate in decisions that directly impact their lands and livelihoods. The absence of HRDD in carbon projects, in addition to the potential to generate serious social and environmental impacts and undermine the credibility of a necessary and urgent market, opens the door to practices incompatible with the very purpose of the carbon market. The Role of Certification Bodies and Companies Certification bodies and companies play a crucial role in strengthening the integrity of carbon credits. They need to adopt rigorous HRDD processes that include not only the technical analysis of emission reductions but also the verification of compliance with human rights standards. The inclusion of HRDD in certifications is a vital step to ensure that credits generated by these projects are truly sustainable and do not become a tool for greenwashing, which even experienced certifiers with established and accepted practices in the market cannot always avoid. In this sense, the case of the Verra certifier, which suspended its carbon credit operations originating from operations suspected of being used for laundering timber illegally extracted from areas that had been deforested in the Amazon and sold to large companies, is emblematic. The issue has been the subject of Operation “Greenwashing” where the federal police are investigating the entire incident. Furthermore, ongoing monitoring and auditing of projects are essential to ensure the maintenance of integrity standards. Without these mechanisms, projects can easily deviate from their initial environmental and social goals, compromising their contribution to mitigating climate change and protecting human rights. Transparency and Accountability Transparency is another crucial aspect of effective HRDD in the carbon market. Companies must be transparent about their practices, reporting clearly and accessibly the measures they are taking to mitigate the impacts of their projects on human rights. Accountability, in turn, requires the existence of effective redress mechanisms for communities and individuals affected by violations. This includes access to justice and adequate compensation for damages suffered. Conclusion Just as the interest rate market underwent a period of structuring until gaining greater breadth and relevance with the oil crisis of the 1970s, Brazil’s carbon credit market is also undergoing a development process. It is natural for a dynamic market to face challenges and opportunities, and for its maturation to require time and adjustments. However, while the former already has a more consolidated structure, the carbon market still faces significant challenges in terms of integrity and transparency. Studies indicate that a significant portion of carbon projects do not meet human rights due diligence standards, which undermines the market’s credibility and prevents it from becoming an effective tool for combating climate change. The lack of transparency and the absence of robust accountability mechanisms not only affect the price of carbon credit itself but can also lead to the proliferation of low-quality projects, loss of investor confidence, and market fragmentation. Additionally, the violation of local community rights can generate social and environmental conflicts, undermining eorts
Nearshoring in Mexico: origin, benefits and opportunities
As a result of the COVID-19 pandemic, and diverse political and economic problems in recent years, such as destocking of raw materials for production in a number of industries around the world, e.g. disposal of microchips in the automotive industry, it is validly concluded that the problems in international trade goes beyond the imposition and compliance of customs duties and non-tariff regulations and restrictions, such as supply chains, international logistics and the proximity of the production of goods to their final destinations. This is causing important and transcendental changes in the world, such as the relocation of important companies in the industries that generate the highest number of jobs globally from China and other Asian countries to more attractive locations such as Mexico, creating this phenomenon known as “Nearshoring”. Now we find ourselves with a new term “Nearshoring”, but what is it? how does it work? where does it come from? and how does it benefit the Companies? Nearshoring? Prior to 2016, the supply chain was focused on Asian countries, mainly China, due to its low production costs. This phenomenon is known as “offshoring”, which consists of hiring already established manufacturers as suppliers so that the manufacturing of the final product is more cost-effective, even with the costs of moving the goods. On the other hand, nearshoring is a concept originated by the trade war between the United States and China initiated in 2016 when former President Donald Trump won the presidential elections in the United States, being that part of his presidential campaign “Make America great again” encouraged the departure of American investors and entrepreneurs from Asian territory to promote their production process to be carried out in the United States, via tax incentives. In addition to the previously mentioned, from January 2020 to May 2023, as a consequence of the global pandemic caused by the COVID-19 virus, supply chains and logistics services were affected, creating chaos in the production of various goods around the world due to a lack of supplies and a shortage of personnel. Likewise, in February 2022, Russia began its territorial invasion to Ukraine, causing many supply agreements with these two countries to be cancelled and several inputs and production processes to be interrupted. For the these reasons, companies were forced to look for closer territories to the country whose market is their destination to install their factories and conduct their production processes of parts or final products. Nearshoring in Mexico Nearshoring in Mexico dates back to 1980 when the country opened its doors to foreign investment, especially in the manufacturing sector. Subsequently, with the signing of the North American Free Trade Agreement (“NAFTA”) in 1994, this investment increased because Mexico, due to its proximity to the United States and the tariff benefits derived from NAFTA, was a determining factor for several foreign companies to invest in Mexican production. Even with the offshoring boom in China and other Asian countries. Mexico has always been an attractive destination for North American and Canadian companies due to its geographic location, labor force, competitive labor costs, export promotion programs, among others, which contributed to the increase in investments and growth of the Mexican manufacturing industry and the gradual development of nearshoring in Mexico. Nearshoring advantages in Mexico As mentioned above, investors from all over the world began to look to Mexico when the COVID-19 pandemic complicated production in China, in addition to the various problems generated in other countries that have caused businessmen to want to have greater control and proximity of their manufacturing, bringing it closer to its destination market, which in most cases is the United States of America. In this regard, the key factors that benefit nearshoring in Mexico, to mention a few, are the following: Territorial proximity to the United States of America, creating logistical advantages as this is the main nearshoring destination worldwide. Same time zone as the United States and Canada. Complicated commercial and diplomatic relations between China and the United States which makes the relationship with Chinese suppliers more complicated. The United States, Mexico and Canada Free Trade Agreement “USMCA” Low labor costs in our country. Access to diverse global markets. Air and port facilities Bonded warehouses Border region and free zones. Tax deduction derived from employee qualification. Immediate deduction on assets Export promotion programs such as the Maquiladora, Manufacturing and Export Services Industry (“IMMEX”) and the Sector Promotion Program “PROSEC”. Tariff and non-tariff benefits of Mexico’s free trade agreements with several countries. Faster and safer supply chains. 2024 Announced Investment. According to the investment announcements issued by the Ministry of Economy, from January 1 to February 29, 2024, 52 investment announcements were identified, equivalent to approximately 25 billion 844 million USD that will enter Mexico in the next two to three years, which could generate 28 thousand new direct jobs for Mexicans. In the following table, we can see which are the 10 countries that issued direct investment announcements in Mexico. From the above, we can see that the country with the highest investment expectations in Mexico is the United States, precisely because of its territorial proximity and low production costs that are attractive to U.S. investors. Then we can observe European countries such as Germany, Netherlands, France, Switzerland, Asian countries such as China, India and Korea and also American countries such as Argentina and Canada. It is very interesting that leading offshoring countries such as China and India are in the investment race in Mexico, taking advantage of nearshoring to be able to compete commercially with European and American products in the North American market. On the other hand, in the following table we can observe the economic sectors to which the aforementioned advertisements belong: From the above, the industry with the highest expectation of foreign investment is manufacturing, since we will now compete with China for the title of “the world’s factory” and other sectors such as mass media, transportation, energy, construction, commerce, services and temporary housing. According to the report, the main manufacturing industries are the
The Future of Real Estate: A Shift Towards Green Leasing
In response to the increasing global focus on climate change, the real estate sector is experiencing a notable transformation. A key element of this shift is the rise of green leases—rental agreements designed to align property management with environmental goals. These leases represent more than just a fleeting trend; they signify a deeper change in how properties are operated, leased, and occupied, merging financial incentives with ecological accountability. Defining Green Leases Unlike traditional leases, which often overlook environmental efficiency, green leases emphasize sustainable practices. They incorporate specific provisions requiring both landlords and tenants to work together to meet mutually beneficial sustainability targets. These leases may include stipulations for improving energy efficiency, minimizing waste, and using eco-friendly materials, creating a cooperative framework for long-term environmental stewardship. Importance of Green Leases 1. Cost Reduction: Sustainable properties often benefit from lower operating expenses due to decreased energy use and waste management costs. These savings can lead to higher returns for property owners and improved leasing conditions for tenants. 2. Adherence to Regulations: With governments globally enacting stricter environmental regulations, green leases help landlords and tenants stay compliant, thereby reducing the risks associated with non-compliance and potential penalties. 3. Meeting Tenant Expectations: As more businesses prioritize sustainability in their operations, green leases serve as an attractive option for environmentally conscious tenants, enhancing the market appeal of such properties. 4. Corporate Social Responsibility (CSR): Many companies now integrate environmental considerations into their CSR strategies. Green leases provide an opportunity for organizations to align their office spaces with their ecological goals, promoting a culture of responsibility. Looking Ahead 1. Technological Integration: As technology continues to evolve, its integration into real estate management will be crucial. Smart building technologies that track energy consumption in real-time will empower tenants and landlords to make informed, sustainable choices. 2. Standardization: As the use of green leases expands, the industry may move toward standardized lease terms, simplifying negotiations and clarifying the roles and responsibilities of all parties involved. 3. Health and Wellness: With the impact of the COVID-19 pandemic, there is a growing emphasis on health within built environments. Future green leases may include provisions to improve indoor air quality, natural lighting, and overall well-being for occupants. 4. Green Retrofitting: The rising demand for eco-friendly buildings is likely to drive investment in green upgrades for older properties. Green leases can play a pivotal role in financing these retrofits by incorporating energy savings into lease agreements. Challenges While green leases offer numerous benefits, some hurdles remain. Lack of awareness and education about these leases is a barrier for both landlords and tenants. Additionally, the initial investment required to implement green practices may discourage some property owners. However, as the long-term advantages become clearer, these challenges are expected to diminish. Conclusion The future of the real estate sector is inextricably linked to sustainability, and green leases will be a central part of this evolution. By adopting these forward-thinking agreements, landlords and tenants can create a more sustainable environment for future generations. Technology, education, and collaboration will be crucial in overcoming obstacles and maximizing the potential benefits of green leases.
Deal Value Thresholds Decoded under The Competition Act, 2002
The noteworthy amendment brought by the Indian Competition Regulator is in Deal Value Thresholds (“DVT”) which now forms part of the Indian M&A regime through a conjoint reading of the Act, the Competition (Amendment) Act, 2023 (“Amendment Act”), and the Competition Commission of India (Combinations) Regulations, 2024 (“2024 Combination Regulations”). The DVT is an additional condition that has been introduced under Section 5 of the Act, which assesses the obligation of prior notifying of transactions to the CCI through a “value of the transaction” test. Through the amendments in the Amendment Act, DVT has been codified in the form of Section 5 (d) of the Act, which is in addition to the Section 5 (a), (b) and (c) threshold analysis that has been prescribed in the existing regime. Under Section 5(d) of the Act, read with the 2024 Combination Regulations: The “value of the transaction” (in connection with an acquisition of shares, voting rights, assets or control or a merger or amalgamation) being analyzed must exceed INR 2,000 crores; (“Value Test”) and The enterprise being acquired, taken control of, merged or amalgamated must have “substantial business operations” in India (“Business Test”). Let’s delve into understanding of the above newly introduced provisions: Step 1: Determining Value Test The components that are to be included within the calculation of the “value of the transaction” have been set out within the 2024 Combination Regulations which are as follows: Regulation 4(1)(a): Covenants, undertakings, obligations or restrictions imposed on the seller or any person (if such consideration is agreed separately) Transaction documents shall clearly specify either (a) specify the value of the non- compete covenant clearly, if such value is separate; or (b) specifically provide that the purchase price consideration already accounts for the cost of a non-compete covenant. Regulation 4(1)(b): Interconnected steps and transactions (provided in Regulations 9(4) and 9(5) of the 2024 Combination Regulations) The time period that may be considered to interconnect transactions for this component can be taken from Explanation (c), which states that any acquisitions by one of the parties or their group entity, in the enterprise, at any time during the period of 2 years before the relevant date are to be considered as part of the value of the transaction. Regulation 4(1)(c): Consideration payable during 2 years from the date on which the transaction would come into effect, for arrangements entered into as part of the transaction or incidental thereto The test of an arrangement falling within this line item is whether such arrangement has been contemplated by the parties as part of the underlying transaction being consummated as on date. Regulation 4(1)(d): For call option shares and shares and shares to be acquired thereof, assuming full exercise of the option Where the option price is pre-determined, such pre-determined value is to be considered. If the exercise price is based on future outcomes set out in transaction documents, “best estimate” to be considered. Regulation 4(1)(e): For consideration payable, as per best estimates, based on the future outcome specified under transaction documents This component “provides flexibility and certainty by providing that this consideration may be included as per best estimates of the acquirer.” This is to be read with Explanation (h) to understand the scope of “best estimates”. Step 2: Business Test – Does the enterprise have substantial business operations in India? Why amendment was brought? A large number of transactions having a larger deal value were not being notified to the CCI as the enterprise was able to avail exemptions under the De Minimis Exemption. For an instance let’s take example of acquisition of WhatsApp by Facebook. Facebook acquired 100% of WhatsApp for a deal value which was touted to be approximately USD 19 billion1. Competition regulators in the European Union and the United States of America did scrutinize and assess whether the acquisition impacted competition in their respective jurisdictions, the CCI could not assess this acquisition. Had there been a situation that if DVT was applicable in 2014, Facebook would have had to undertake the Business Test (given that the Value Test is getting satisfied due to the high deal value) for WhatsApp in India to ascertain whether a notification to the CCI was required. If WhatsApp satisfied the Business Test, the transaction would have been notifiable to the CCI owing to the DVT.Thus, the introduction of the DVT was required for the CCI to evaluate transactions that could influence market competition but previously got sheltered through the Previous De Minimis Exemption or De Minimis Exemption, and their lack of residual powers for scrutiny of such non-notifiable deals.
