ARTÍCULOS


On 16 January 2012, a new law, Ley de AsociacionesPúblicoPrivadas (PPP Law) specifically suited to deal with these matters was published in the Federal Official Gazette. PPP projects covered by this law are those projects that under any scheme establish a long-term relationship between public and private sector for the provision of services to the public sector. They utilize infrastructure totally or partially provided by the private sector aiming at increasing the social welfare and investment levels in the country. PPP projects may also include projects that under any scheme of partnership develop productive investment projects, applied research and/or technological innovation.

In order to carry out PPP projects it is necessary (1) to execute a long-term contract, (2) to obtain all permits, concessions, and authorizations to use and exploit the public services or infrastructure; and (3) only for those projects in connection with innovation and technological development, the approval in advance of the Technological and Scientific Forum.

Mexico as an heir of the civil law tradition has adopted since a long time the theory of "contratosadministrativos" (administrative contracts or state contracts). These types of contracts are governed by a specific branch of law: administrative law (public law) utterly distinct from the contracts executed between private individuals (private law either civil or commercial law).  On certain occasions, specific jurisdictions, i.e. administrative courts are the sole competent courts to hear disputes arising out of these contracts.

It should be noted that PPP Contracts are considered state contracts. Thus, the PPP Law sets forth a detailed regulation for the contracting process as well as for the execution of the contract. The Commerce Code will be useful to complement the provisions of the law. This is an important change in the Mexican tradition of administrative contracts. An administrative law (public law) will be complemented by commercial provisions. Usually, civil law fills the lacunae of administrative provisions. Uncertainty looms largely in regards to the interaction between private and commercial bodies of law. But as we shall see in the field of arbitration, the state contract doctrine embedded in the arbitration provisions casts doubt on the efficiency of alternative dispute resolution.