A legal entity of foreign nationality, currently conducting commercial transactions in Mexico, wants an attorney-in-fact with a power of attorney that was granted abroad be able to perform various transactions/acts in Mexico. Is this possible?
Yes. The legal capacity of a foreign legal entity shall be evidenced in the following two ways:
a) By means of a power of attorney granted pursuant to the governing legislation of the place where same was granted;
b) According to and in compliance with international treaties.
I would be remiss if I did not express that the power of attorney must be legalized before a Mexican Consul or Ambassador from where the company granting said power of attorney is located, or, in the event the company is located in a state that signed the Hague Treaty of 1965, then the power of attorney may be apostilled.
The following precept serves as a basis:
LEGAL CAPACITY OF FOREIGN CORPORATIONS. WAYS OF EVIDENCING SAME (ARTICLE 181 OF THE INDUSTRIAL PROPERTY LAW).
This provision indicates that when applications and submissions are filed by and through an agent, said agent must evidence the legal capacity with a simple proxy signed before two witnesses in the event that it concerns legal entities applying for patents, registrations, or the recording of licenses or their transfers; the proxy having to show that such person issuing same has the powers and authority to do so and citing the document/instrument wherein said powers and authority are on record. In turn, Section IV of the numeral under discussion, stipulates that in cases not included in section II, the legal capacity of a foreign legal entity shall be evidenced in the following two ways: a) By means of a power of attorney granted pursuant to the governing legislation of the place where same was granted; and (b) According to and in compliance with international treaties; likewise, the section analyzed establishes that when the power of attorney attests to the legal existence of the legal entity on whose behalf the power of attorney was granted, as well as the right of grantor to confer same, the validity of the power of attorney shall be presumed, unless there is evidence to the contrary; hence, due to the legislator’s use of the word "or", one may conclude that the legal provision under review establishes two completely independent hypotheses in order that foreign corporations evidence their legal capacity before the Institute of Industrial Property; in such a way, satisfying the requirements relative to the first way cited eliminates the obligation to meet the requirements of the second (way) and generates the presumption alluded to in the foregoing guidelines.
SEVENTH COLLEGIATE COURT ON ADMINISTRATIVE MATTERS OF THE FIRST DISTRICT (*roughly analogous to the US Circuit Courts of Appeal).
Amparo in revision 2807/98. Havana Rum and Liquors, S.A. August 27, 1998. Unanimous vote. Speaker: F. Javier Mijangos Navarro. Secretary: Gustavo Naranjo Espinosa.
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