The Grimaldi Alliance (GA) has achieved gender equality certification: an important milestone for GA, which demonstrates the firm's focus on gender parity in the professional services sector.

The certification was achieved in accordance with UNI 125:2022 practice, which defines the guidelines for a gender equality management system, and represents a significant recognition of the firm's proactive approach and relentless work to promote a work environment that is fair and respectful of gender diversity: culture and strategy; governance; human resources processes; opportunities for growth and inclusion of women in the company; gender pay equity; parental protection and work-life balance. The certification was obtained with the support of a team coordinated by Daniela Fioretti, partner and member of the Strategic Advisory Board.

Francesco Sciaudone, managing partner of Ga commented: "This certification reflects the work and commitment of our team in creating an inclusive and respectful environment, where gender differences are valued and celebrated. Grimaldi Alliance,' Sciaudone pointed out, 'has not only put inclusion at the heart of its growth strategy, it has also interpreted diversity as eliminating any difference in treatment, as wanting to make a difference, and as being different, in a professional services market that is too preoccupied with technology and too little with the human factor, which remains central for us. Ga is determined to maintain this commitment by continuing to develop initiatives aimed at Diversity and Sustainability, not only within the firm but also in the active support of its clients. In fact, Ga has set up a multidisciplinary team - with partners Maddalena Boffoli, Vincenzo Maurizio Dispinzeri, and Francesco Conti - in order to assist companies in their certification processes and, more generally, in adapting their governance to the principles of sustainability and management of ESG factors'.

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I would like to point out the recent judgment no. 3976 filed on 10/03/2023 (rg no. 13405/2020) whereby the Ordinary Court of Rome - X civil section rejected in its entirety the request by a company against which a bankruptcy order (hereinafter referred to as "Bankruptcy") had been made for the payment of substantial sums to a company controlled by the Ministry of Economy and Finance, which I assisted, as Principal, by way of consideration for the services under the relevant tender contract, plus default interest pursuant to Legislative Decree no. 231/2002.

First of all, the objection raised ex adverso, contested by our defence, concerning the alleged impossibility for my client, as Principal, to oppose to the Receivership the non-performance of the remuneration obligations of the company in bonis, with specific regard to the contract in question, was rejected.

In this regard, in upholding our defence, it was held that "bankruptcy does not entail a subjective change of the bankrupt, let alone its extinction, but rather represents a mode of administration entrusted to bodies responsible for managing the crisis and realising the aims that the bankruptcy law proposes. Among these, the main ones are the increase of the assets aimed at satisfying the creditors' claims and the safeguarding of existing assets. It follows that, albeit with some exceptions, pending bankruptcy proceedings, the bankrupt, in the person of the trustee, remains subject to the unexhausted relationships that arose prior to the filing. With respect to public contracts, the rule of continuity of legal relationships must be balanced against the nature of the activity. Firstly, Art 81(2) of the bankruptcy law specifies that, in the event of the bankruptcy of the contractor, if its subjective quality was a determining reason for the contract, the contract is dissolved, unless the principal nevertheless consents to the continuation of the relationship without prejudice to the rules on public works contracts. In this sense, there is no doubt that, in the context of a public tender, where the other party is an RTI, its qualities are decisive for the award. However, the Public Contracts Code itself, as amended in 2019 and applicable to the case at hand, is concerned with the continuity of the service, providing in Article 104 that the judge, in the judgment declaring bankruptcy, may authorise the receiver to temporarily exercise the undertaking if serious harm may result from the interruption. Moreover, the aforementioned provision states that, during the provisional exercise, pending contracts shall continue unless the liquidator intends to suspend or dissolve them."

That being said, in the present case, it was found that "the taking over of the bankruptcy for a limited period of time does not exclude liability for the obligations arising from the pending relationships of the company in bonis both because of the aforementioned principle of continuity and because the continuation of the company's activity appears to have been the subject of the specific will of the receiver and judicial authorisation and the same acted to be excluded only following the taking over of the new agent. This circumstance, which testifies to an effective continuation of the contractual services, makes it possible to further emphasise that, with reference to the employment relationships existing at the date of the declaration of bankruptcy, the regulatory system, in the absence of a specific provision, is oriented towards considering that the employment relationships continue with the company as such. Article 2119, paragraph 2, of the Civil Code, which provides that the bankruptcy of the entrepreneur does not constitute just cause for termination of the employment contract precisely by virtue of the survival of the entity at the declaration of bankruptcy, an institution appointed to manage it for liquidation purposes. Moreover, as pointed out by case law (see Cass. Civ. Sez. I, no. 18779/2019), even if the trustee does not opt for the provisional exercise of the company pursuant to Article 104 of the Bankruptcy Law, the legal asset of the company, understood as the set of material and legal elements organised for the purpose of running a business, remains because the mere cessation of the activity, for a more or less long period, does not in itself imply the disappearance of the company organisation".

On the basis of these premises, therefore, the Court held that the Trustee in Bankruptcy was identifiable as the debtor of the salary, contribution and social security obligations towards the former employees, as sustained by the defence of the Defendant assisted by me.

In view of the legal framework referred to in Article 1676 of the Civil Code and Article 29 of Legislative Decree 276/2003, considered applicable to the case at hand, the Court also found that the defendant's self-defence and good faith behaviour as a precautionary measure was legitimate, by suspending the flow of payments to the bankruptcy in the face of the bankruptcy's failure to fulfil its obligations in respect of the former employees' wages, contributions and social security contributions.

In this perspective, it was considered that the aforesaid breach by the performing contractor first and by the bankruptcy afterwards constituted, according to the will expressed by the parties, a hypothesis of serious breach. Moreover, although the client was entitled to proceed with payment by deducting the amounts paid from the amounts due to the other party, this right was not exercisable in practice since, as the Court correctly ascertained, it was apparent from the documents produced that there had been numerous unsuccessful requests for clarification as to the real extent of the unpaid salary and social security credits to the employees, nor had the plaintiff in its defence made this fact known or justified its failure to reply. The suspension of payments by the Principal was therefore not only lawful, but was also deemed necessary by the Judge in view of the concrete risk of claims against the Principal and the need to use public resources in addition to the amounts determined in the contract.

International Investment

Nearshoring in Mexico: Most Attractive Destination to Do Business in Latin America

Mexico has arguably emerged as the most attractive destination to do business in Latin America, surpassing Brazil, according to the KPMG 2023 M&A in Latin America Survey. Additionally, the United Nations Economic Commission for Latin America and the Caribbean (ECLAC) reports that Mexico has now captured 17% of foreign direct investment (FDI) to the region in 2022.

One of the key drivers behind this trend is Asian investment, as companies seek to relocate their supply chains closer to the US market amid the ongoing trade war between China and the United States. The phenomenon known as nearshoring is gaining momentum, and experts predict that it will continue to deepen in 2023. In fact, data from the Mexican Association of Private Industrial Parks (AMPIP) reveals that 63% of projects aimed at bringing production closer to the US market originate from Asian economies. China is the leading investor (49%), followed by Italy, Germany, South Korea, and Taiwan. The northern border region, including cities such as Monterrey, Ciudad Juarez, Saltillo, and Tijuana, has emerged as the most attractive area for companies, particularly in the automotive sector. Other dynamic industrial markets in non-border states include the Bajío, Mexico City, and Guadalajara.

The services and manufacturing sectors have been the primary beneficiaries of FDI, with the automotive sector, including parts and components, accounting for a significant portion of new investment in 2022. For example, Tesla recently announced that it will build the largest Tesla Gigafactory in the world in Nuevo Leon, Mexico, with an investment reaching 5 billion dollars. Mexico’s favorable investment climate, skilled labor force, and geographical proximity to North America is expected continue to attract significant FDI. However, to maximize this opportunity,
certain areas need improvement, such as energy policy, water supply, and crime reduction, according to BBVA analysts.

Dispute Resolution

Introduction of the New National Code of Civil and Family Procedures

On June 7th, 2023, the new National Code of Civil and Family Procedures was published, with the objective of standardizing procedures across the country, replacing all existing civil procedure codes.
The adoption of the new National Code will take place gradually, encompassing both federal and local governments, and is expected to be fully implemented by April 1st, 2027. This comprehensive Code will have a significant impact on court procedures, due to this Code serving as supplementary law for many legislations, including the Amparo and administrative procedures.

It aims to reduce judicial overload, expand the protection of human rights and vulnerable individuals, ensure fair and efficient access to justice, promote oral proceedings, and combat corruption.
Key changes introduced by the new code include:

a. Introduction of Summary Oral Proceedings: This fast-track approach allows for the completion of the entire legal process within a month. Hearings are recorded instead of maintaining physical files, enabling easy access to information. Only the final judgment can be appealed in these proceedings.

b. Special trials: Special oral trials are established to expedite matters such as insolvency, mortgages, real estate leases, and judicial registration of real estate.

c. Prioritization of alternative justice: The use of alternative dispute resolution methods, such as mediation and conciliation, is strongly encouraged.

d. Recognition of social changes: For example, uncontested divorce is now permitted nationwide, enabling couples to dissolve their marriage without justification in court.

e. Increased participation of Notary Publics: Notary Publics are expected to play a more active role in numerous procedures, particularly those related to voluntary jurisdiction, divorce proceedings, and inheritance trials.

To implement these changes effectively, the new code places great emphasis on the use of information technology in judicial proceedings. While some states had already begun adopting new technologies, the new Code now enables the recording of hearings, issuance of summons via email, collection of testimonial evidence, use of technology as evidence, video recording of procedures, and obtaining testimonies from minors.

Natural Resources

Mining Reform

On May 8th, 2023, a comprehensive mining reform, modifying various laws such as the Mining Law, National Water Law, General Law of Ecological Balance and Environmental Protection, and General Law for the Prevention and Comprehensive Management of Waste was published.

Its primary objective is to address the unsustainable exploitation of resources and labor in the mining sector, while reestablishing state control and safeguarding human rights, the environment, and indigenous territories.
Key changes introduced by the reform include:

a. Elimination of Preferential Treatment: The reform abolishes preferential treatment for mining activities, ensuring a level playing field for all participants in the sector.

b. Prohibition of Underwater Mining and Mining in Protected Areas: Under the new legislation, underwater mining and mining activities in protected areas are strictly prohibited to preserve the integrity of these vital ecosystems.

c. Removal of the Concept of “Free Land”: The concept of “free land” has been eliminated. Mining concessions, now limited to 30 years, will now be granted through public tenders. Additionally, a 25-year extension may be possible under certain circumstances.

d. Alignment of Water Concessions: Water concessions are now aligned with mining concessions. Moreover, there is an obligation to prioritize water supply for human consumption, ensuring the protection of this invaluable resource.

e. Recycling Obligations: Concessionaires are now required to recycle a minimum of 60% of the water granted for their mining activities. This measure aims to promote responsible water management and conservation efforts.

f. Social Impact Assessments and Indigenous Consultations: The reform introduces social impact assessments and indigenous consultations as mandatory prerequisites before commencing mining operations. These assessments will help mitigate the potential negative consequences of mining activities and ensure the involvement and protection of local communities and indigenous territories.

g. Criminal Offenses: The reform establishes criminal offenses for mining companies, providing a robust legal framework to hold them accountable for any violations.

h. Mine Closure Mechanisms: Mechanisms for orderly mine closure are introduced to ensure proper rehabilitation of mining sites once operations conclude.

Labor and Employment

Labor Reform: Senior Citizen Affirmative Action

On March 14th, 2023, the Senate (upper house) passed a bill that, pending approval by the House of Deputies, would modify the Federal Labor Law. The proposed change would require companies with over 20 employees to take affirmative action by hiring at least 5 percent of adults over the age of 60.
The proposed reform specifically addresses the discrimination and challenges faced by older adults in the labor market. Historically, they encounter difficulties in finding decent work opportunities and pensions, which often leads many to accept informal and precarious jobs, exacerbating the vulnerability of this group.

From approximately 15 million senior citizens in Mexico, 40% are economically active, and 70% of which work in the informal sector or are self-employed, hindering their access to social protection systems. In addition, close to 85 thousand are believed to be in active search of employment. The proposed changes align with the Mexican Constitution’s recognition of dignified work and protection of the rights of this vulnerable group, as it aims to create better job opportunities for older adults.

At the earliest, the bill would be discussed by the lower chamber in September. However, it’s important to note that the proposed reform does not include a transitional period for implementing the changes, and as it stands, would depend on the interpretation of the Department of Labor.