The Projects and Construction Review: Mexico

Introduction

Mexico has an infrastructure development strategy sustained by a series of national and specific sector development plans, principally consisting of two official documents issued by the executive branch of Mexico.

First, the National Development Plan (PND), which gathers the strategy, national objectives and priorities for Mexico's sustainable development. Second, the National Infrastructure Programme (PNI), aligned with the PND with a focus on boosting infrastructure development as a strategic measure for improving Mexico's competitiveness, while increasing productivity and creating more and better paid labour opportunities. The PND and the PNI are six-year programmes mandated by each new presidential administration. Mexico held presidential elections in 2018, which resulted in a left-wing party with a populist president taking office. The PND and PNI for the 2019–2024 governing period were not officially published by the federal government until July, 2019 and November, 2019, respectively, something that added to the uncertainty brought by the first year of the new administration.2 The PNI covers a total of 147 projects within the main infrastructure sectors, namely telecommunications, energy and electricity, hydrocarbon, tourism, health and transport, although many of the projects included in the PNI had already been included in plans for previous years. Further, the PND puts a special emphasis on certain areas: gender equality, non-discrimination and inclusion, the fight against corruption and sustainable social development.3

There are different legal schemes for the development of infrastructure projects in the public and private sectors. These are as follows:

  1. Concessions: mainly used in the transport sector for roads, ports and airports and in certain water projects. The private entity is usually selected through a bidding process and is in charge of building, maintaining and operating the facilities. All investment returns are obtained through fees paid by customers.
  2. Financed public works: widely used in various sectors (e.g., transmission lines or certain generation plants). The private entity is usually selected through a bidding process, investing and constructing a project for delivery to the public entity in exchange for a consideration equivalent to the total investment plus a margin.
  3. Joint ventures: used in a limited manner, mostly in the hydrocarbon sector. A risk-sharing equity investment scheme between a private entity and a public entity.
  4. Public-private partnership (PPP) contracts: generally used for social infrastructure projects (such as schools, hospitals and prisons) and in the water and transport sectors. A PPP contract is a long-term contract through which a private entity, usually selected through a bidding process, designs, builds, finances, operates and maintains infrastructure for the provision of public services, in exchange for an economic consideration, usually on a fixed basis paid by a public entity, but can also be structured on a mixture of bases whereby the private sector can take some of the demand risk.

During the previous administration, there was a notable increase in the number of financed projects developed in Mexico, mainly as a result of the enactment of substantive energy reforms in 20134 and the approval of the Public-Private Partnerships Law (the PPP Law) in 2012. Before these reforms, Mexican authorities had to rely primarily on the Public Works and Related Services Law or, for the concessions described above, the specific law applicable to the industry in question.

Although tailor-made legislation and laws that can make bid processes more efficient are still needed to boost infrastructure development in Mexico, the energy and PPP Law reforms, and general open market policies, have helped to reduce the infrastructure gap in the country.

The year in review

Mexico is one of the few economies that achieved sustained economic growth for 10 years until 2018. According to the National Institute of Statistics and Geography, in 2019, the gross domestic product (GDP) contracted 0.1 per cent, mainly because of a decrease in industrial production, a slower services market and less investment. .

Until 2018, Mexico continued to implement the 'structural reforms'5 that, according to the government, would enhance the country's modernisation effort by increasing productivity, reinforcement and expansion of citizens' rights, and by establishing a democratic regime. The structural reforms allowed private companies to participate in markets that were traditionally reserved for the public sector, mainly in the energy sector, in particular in hydrocarbon and electricity (including renewable energy), which enabled substantial private investment during 2018 in comparison with previous years and other sectors. That changed in 2019, with substantial public policy changes implemented by the government, including: (1) measures to weaken important regulatory bodies in the energy sector and to strengthen state-owned companies PEMEX and CFE; (2) a shift from PPP structures to public works financed by the federal government; and (3) the cancellation of important energy and infrastructure projects to support other controversial projects and to channel resources to new social programmes. All this resulted in uncertainty and a slowdown in infrastructure investment, although certain benefits from the structural reforms remain and have allowed for some private projects to continue developing.

There are approximately 227 'new' (i.e., not yet in operation) infrastructure projects, 145 of which are in the execution stage, mainly in the energy, hydrocarbon, social (hospitals, universities, prisons and tourism) and communications (bridges and toll roads) sectors. Examples of projects that are being considered for development or are under development are outlined in the table below.6

ProjectSectorEstimated investmentStage
Mayan trainTransportUS$7.5 billionBidding process, about to be awarded
Extension, maintenance and conservation of the Tulum-Cancun Highway SectionTransportPending definitionPre-investment
Maintenance, rehabilitation and operation of the Highways and International Bridges of the Northeast PackageTransportPending definitionBidding process, about to be awarded
Multi modal transfer station (CETRAM) TasqueñaTransportUS$265 millionExecution
Programme for the development of the Tehuantepec isthmusTransportPending definitionPlanning
Dos Bocas Refinery, TabascoHydrocarbonUS$8 billionPlanning
Licence agreement for hydrocarbon exploration in deep waters in the Gulf of Mexico, in a block of 1,285km² for light oil extractionHydrocarbonUS$7.424 billionExecution
Gas pipeline 'Sur de Texas-Tuxpan'HydrocarbonUS$2.111 billionExecution
CFE interconnection SIN-BCS transmission lineElectricityUS$1.6 billionPre-investment
Third auction 100 MW photovoltaic power plant in the State of SonoraElectricityUS$105 millionExecution
CFE Salamanca combined cycle power plantElectricityUS$600 million approximatelyBidding process
General Hospital in the Mexico City South Regional Delegation (Tlahuac)Social infrastructureUS$149 millionExecution
Papantla prison complexSocial infrastructureUS$191.4 millionPre-investment
Mazatlán AquariumSocial infrastructureUS$76.22 millionExecution
Playas de Rosarito desalination plantWaterUS$453,64 millionExecution
Desalination Plant of Guaymas and Empalme, SonoraWaterUS$35 millionExecution
Desalination Plant of Los Cabos, Baja California SurWaterUS$55.9Pre-investment

Risk allocation and management

i Management of risks

Risk allocation in Mexican projects is generally regulated under each separate contract or concession. The laws will set basic standards in some instances, such as force majeure. Owing to the complex land ownership regulation in Mexico, in the past, the government assumed the risk regarding the acquisition of the lands or easements necessary to develop a project; however, in recent years, supported by reforms, this risk has been allocated in many instances to the SPV.

In the event of force majeure, the basic principle is that no party is liable. However, project requirements may force the parties into agreeing to share the risk; for instance, making no payment or a reduced payment from the sponsor to the developer, with a right to terminate by the developer after a certain period of time has elapsed without the force majeure event lifting. The circumstances regarded as force majeure shall be defined within the contract (as there is no statutory definition) and shall refer to unforeseen events, or foreseeable events that could not have been prevented, such as public riots, strikes, war, insurrection and acts of God.

ii Limitations of liability

Limitations of liability shall be agreed by the sponsor of the project and the SPV. The limitations can vary depending on the entity that may incur liability and the nature of the liability. However, for certain projects (e.g., those relating to healthcare or tourism) it is customary to agree on a maximum liability amount, equal to the annual price of the contract based on the financial model of the project.

Security and collateral

A contract shall establish the terms and conditions under which the lenders of the SPV may exercise their step-in rights to temporarily take over the project if the SPV fails to comply with its obligations, or is negligent in complying with its obligations. In such an event, the sponsor under the contract must authorise the execution of the step-in rights.

A typical security and collateral package to guarantee financing agreements under a Mexican contract consists of the following:

  1. pledges for the SPV's shares;
  2. the formation of a management, security and payment trust agreement to which the SPV and its shareholders (as applicable) would contribute, among other things, shares of the SPV, any collection rights under the contract and project assets and real estate rights not owned by the governmental entity. Through this type of trust, agreement funds and collections would flow through a defined waterfall, and different accounts are clearly defined, segregated and identified within the trust in such a way that the lender receives payment first from the project income generated by the project-financed asset; and
  3. a pledge for the SPV's assets not contributed to the security trust.

It is common for a lender to enter into direct agreements with subcontractors, governmental entities or offtakers under an infrastructure contract to facilitate the execution of the agreed step-in rights of the lender.

Bonds and insurance

The guarantees normally required for infrastructure projects are typical in other parts of the world, such as Spain. For construction services, a performance guarantee is customary (the amount ranges between 10 per cent and 25 per cent of the total construction and equipment value). Bonds and letters of credit are the most common guarantee instruments.

Before entering into a contract, an SPV usually hires a third-party insurance specialist to investigate and assess the risks that may be associated with the project during its development. This assessment will help to determine the insurance needed, which, as a minimum, will cover the final users of the infrastructure, the infrastructure itself, the assets used to provide the service, business interruption and third-party liabilities.

Enforcement of security and bankruptcy proceedings

Security interests can generally be enforced when a secured claim is due. Although there might be special procedures available for lenders to enforce security interests, they can be enforced in different ways depending on the security (extrajudicial contractual foreclosure of the title, execution of pledge assets, public auction, etc.).

Bankruptcy under Mexican law is divided into three stages: insolvency, reconciliation and bankruptcy. During the first stage, a judge appoints a visitor who renders an expert opinion on the company's finances. The objective of the second stage is to reach an agreement and avoid declaring bankruptcy. If this is achieved, the parties will sign an agreement; if not, the judge will declare bankruptcy.

Commercial insolvency, bankruptcy (either voluntary or involuntary), liquidation, dissolution or similar relief under applicable law would typically be considered a breach of contract by the developer and would give the sponsor of the project or the lender under the financing documents grounds for termination of the contract without the need of a legal process.

Notwithstanding the foregoing, some security interests (such as lender's step-in rights) can be enforced outside commercial insolvency or bankruptcy procedures.

Socio-environmental issues

i Licensing and permits

The absence of a correct permit or licence may result in early termination of a project. Depending on the contract, the SPV and the sponsor may share the burden of obtaining the necessary permits and licences.

Among others, the following are required for a project development:

  1. concession title for the use and exploitation of a public domain asset or for water rights;
  2. construction permits;
  3. land-use permits and real property rights, which are granted by both federal and state authorities;
  4. environmental impact authorisation issued by the Ministry of Natural Resources. In this important document, certain environmental conditions are established to develop the work and activities based on the effects that the project may have on the ecosystem;
  5. clearance from the National Institute of Anthropology and History, which conducts studies to determine whether there are archaeological findings on the site designated for the project; and
  6. for electricity projects, an authorisation from the Energy Regulatory Commission or the National Energy Control Centre and interconnection studies and contract.

ii Equator Principles

Some financial entities require, as a condition within financing documents, that the parties of a contract, and the proposed project, observe and comply with the provisions of the Equator Principles. The Equator Principles are mandatory enforcement provisions for financial institutions that have voluntarily adopted them.

PPP and other public procurement methods

i PPP

PPP contracts have become important for project finance in Mexico and will most likely continue to be important in the coming years. Most of the PPP projects thus far have been developed by the federal government under the PPP Law although the current federal administration is changing that approach and states and municipalities are using PPP structures more.

PPP projects can be carried out in Mexico by the following: entities of the Federal Public Administration; federal public trusts not considered as state-owned entities; federal entities with constitutional autonomy; and federal entities, municipalities and other public entities with federal resources.

PPP projects are not subject to traditional procurement laws but have their own procurement process and laws. Observance of the PPP Law is optional and other federal laws may apply. The PPP Law contemplates a relatively new contractual scheme known as 'unsolicited proposals', through which the private sector may reach out to the government to propose the development of a new infrastructure project through a PPP scheme.

Currently there are over 36 PPP projects under development, involving a variety of sectors, including water and environment, transport, telecommunications and social infrastructure. Some of the most significant are in the following table:

ProjectSectorEstimated investmentType of contract
Las Varas–Puerto Vallarta highway sectionTransportUS$360.8 millionFederal PPP
Waste water treatment plants in the State of Mexico and Mexico CityWaterUS$47.5 millionFederal PPP
General Hospital in Tlahuac, Mexico CityHealthcareUS$149.18 millionFederal PPP
Desalination plant in Playas de Rosarito, State of Baja CalifornaWaterUS$453.6 millionState PPP
Nichupte Vehicular BridgeTransportUS$200 millionState PPP
Desalination plant of Guaymas and Empalme, SonoraWaterUS$35 millionMunicipal PPP
Desalination plant of Los Cabos, Baja California SurWaterUS$55.9 millionMunicipal PPP
Maintenance, rehabilitation and operation of the Highways and International Bridges of the Northeast PackageTransportPending definitionFederal PPP

ii Public procurement

The Public Works and Related Services Law governs the awarding of public procurement agreements. Article 134 of the Mexican Constitution states the fundamental principles for the administration of public economic resources: efficiency, effectiveness, economy, transparency and honesty. As a general rule, public entities are obliged to select a contractor through a tender process (with the exception of those expressly determined by law). The tender process for public procurement is substantially similar to that described in Section III.iii, point (b).

Although PPP projects have become a vitally important part of the project finance sector, public procurement continues to be a significant tool in the achievement of infrastructure projects for Mexico and, considering the new administration's public policy, will probably grow in number in comparison with other types of infrastructure contracts.

Foreign investment and cross-border issues

Many restrictions regarding foreign investments have been eliminated over the years, with the aim of attracting investment into the country and increasing economic competition. Currently, according to Article 6 of the Foreign Investment Law, the following activities are exclusive to Mexicans or Mexican entities with a foreigners' exclusion clause: national land transport of passengers, tourists and cargo, excluding courier services; development banking institutions, under the terms of the applicable law; and the rendering of professional and technical services expressly indicated by the applicable law.

The following restrictions are applicable to foreigners wishing to participate in certain activities or companies:

  1. Maximum foreign investment permitted: 10 per cent. Applies to production cooperative societies.
  2. Maximum foreign investment permitted: 49 per cent. Applies to:
    • manufacture and commercialisation of explosives, firearms, cartridges, ammunition and fireworks, not including the acquisition and use of explosives for industrial and extractive activities, or the development of explosive mixtures for the consumption of said activities;
    • printing and publication of newspapers for exclusive circulation in the national territory;
    • series 'T' shares of companies that own agricultural, livestock and forestry land;
    • fishing in freshwater, coastal waters and in exclusive economic zones, excluding aquaculture;
    • integral port administration;
    • port services for piloting ships to carry out inland navigation operations, in accordance with the applicable law;
    • shipping companies dedicated to the commercial exploitation of vessels for inland navigation and cabotage, with the exception of tourist cruises and the exploitation of dredges and naval artefacts for the construction, conservation and operation of ports;
    • supply of fuel and lubricants for boats, aircraft and rail equipment;
    • broadcasting. Within the limits offoreign investment, maximum investments will be tailored to an investor nationality basis considering reciprocity agreements with the corresponding country; and
    • certain air transport services.

According to Article 8 of the Foreign Investment Law, special authorisation is needed for a foreigner to have a participation of more than 49 per cent in the following activities and companies:

  1. port services for vessels to carry out inland navigation operations, such as towing, and rope lashing;
  2. shipping companies dedicated to the exploitation of vessels exclusively in high altitude traffic;
  3. companies licensed to operate commercial air strips;
  4. private services for preschool, primary, secondary, mid-high, higher and combined education;
  5. legal services; and
  6. construction and operation of public railways, and public rail transport services.

Regarding the removal of profits and investments, the Foreign Exchange Commission, formed by officials from the Ministry of Finance and the Bank of Mexico, is responsible for foreign exchange policy. At the end of 1994, the Commission determined that the exchange rate would be determined by market forces (floating exchange rate and free float regime). Although the federal government implemented a plan for Mexican companies to repatriate foreign earnings in 2017, there is currently no programme that would facilitate this under Mexican law.

Dispute resolution

i Special jurisdiction

There are no specialist courts in Mexico to which project finance transaction disputes can be submitted. It is customary for parties to submit any dispute arising from a contract to which Mexican law applies to the federal courts in Mexico City. However, this standard process may be affected by several variables, such as the location of the project and the parties involved. Some PPP contracts contemplate a previous court dispute resolution consisting of an expert committee to which the parties can submit the dispute and even stipulate that the committee's decision is binding on the parties. In any case, the parties may agree on the dispute resolution process in the corresponding contract.

ii Arbitration and settlement

Under certain contracts, parties may agree to go before the Ministry of Public Function (comptroller) to file a conciliation process regarding dispute resolution under the contract. If no agreement is reached through this conciliation process, parties may agree to submit the dispute to arbitration, which must be governed by Mexican law because in project finance transactions, one of the parties is a public entity.

Dispute resolution with lenders may be submitted to arbitration, governed by arbitration rules (International Chamber of Commerce rules are customary).

Outlook and conclusions

Although there is still a lot to be done to modernise Mexico's legislation, there is little doubt that progress has been made during the past 18 years in attracting national and foreign investment in major infrastructure projects. The enactment of the PPP Law in 2012 and the energy reform in 2013 represented a milestone for project finance transactions. Private entities were given greater powers on decisions, while the public sector has been able to receive better and more economically efficient design, construction, operation and maintenance proposals. In addition, PPP projects are a more flexible scheme for the government as they do not necessarily involve public resources. However, at least at the federal level, the current administration is undermining the PPP structure and there seems to be a paradigm shift towards the more traditional procurement of public works involving the use of budgeted public resources without long-term project financing (e.g., the Mayan Train project). Also, some actions have been taken that adversely affect investors' confidence; for example, cancelling electricity auctions, farmouts and oil rounds, challenging certain pipeline contracts entered into by state productive company CFE with private companies and changing the rules of the clean energy certificates market in renewable energy projects. .

On the energy hydrocarbon front, private projects in the electricity and midstream sector continue to be developed, but at a slower pace. While the government is trying to strengthen both Pemex (Mexican Petroleum) and the CFE (the federal electricity commission), not involving the private sector in their projects puts more pressure on the productive state companies' finances and has resulted in the recent downgrade of their ratings. The energy sector has also been awaiting for a government plan to promote private investment in the field for months, without much success.

We have seen no considerable progress on public policies based on anticorruption, social responsibility and gender equality publicized by the federal administration. The uncertainty stemming from the investment market and credit rating agencies on the government's ability to adopt fiscal policies to achieve an equilibrium between revenue and expenditure has increased, and worsened exponentially because of the covid-19 pandemic, the low oil prices and the lack of substantial economic relief measures by the government. The number of project finance transactions with public investment will probably decrease; despite the economic and fiscal effects of the crisis, the federal government focus seems to be on the much criticized mega projects, such as the new Santa Lucía airport, the Dos Bocas refinery and the Mayan Train, which will increase the pressure on the government and Pemex finances considerably.

Footnotes

Footnotes

1 Vanessa Franyutti and Santiago Medina are partners at Nader, Hayaux y Goebel, SC.

2 Andrés Manuel López Obrador, the president of Mexico, began his administration on 1 December 2018 and it will conclude on 30 September 2024. Both the PND and the PNI were issued as very general documents without the detail and rigour that was traditionally expected from previous administrations. A plan for investments by the private sector in energy projects is still expected for several months.

3 For more details of the new PND, see https://www.gob.mx/shcp/prensa/comunicado-no-021-plan-
nacional-de-desarrollo-2019-2024.

4 The current administration has slowed down the effects of the 2013 energy reform; however, to formally do so would require amendment to the Federal Constitution, which, at the time of writing, does not seem to be one of the priorities of the administration. There have been cancellations of electricity auctions and rounds for contracts in the hydrocarbon sector and certain administrative rulings aimed to impair some benefits afforded under the energy reform.

5 The structural reforms consist of a series of amendments to the Mexican Constitution and secondary laws implemented between 2012 and 2018 for the energy, antitrust, telecommunications, tax, finance and labour sectors.

6 A complete list of infrastructure projects can be found at http://www.proyectosmexico.gob.mx/en/home/.

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