International Treatises in Law School
JUAN ILICH PÉREZ GARCÍA1
ÓSCAR DANIEL LADRILLERO MARTÍNEZ2
ALFONSO AMADOR MARTÍNEZ MIRANDA3
SUMARIO. I. Introducción. II. Importance of the USMCA. 1. Precedents. 2. Labor Law – employee relations. 3. People Mobility. 4. IP Law – AI. 5. Civil & Commercial Law – Contracts.
III. Mexico-European Union. 1. Precedents. 2. Labor Law – employee relations. 3. People Mobility. 4. IP Law – AI. 5. Civil Law – Contracts. IV. A special insight into China. 1. Precedents. 2. Labor Law – employee relations. 3. IP Law – AI. V. Conclusions.
Palabras clave: Derechos laborales, empleo informal, inteligencia artificial, movilidad de personas, comercio exterior, trabajadores, regulación.
Abstract. Throughout the present research, it is sought to discuss several topics which are impossible not to consider in relation to international treatises and Law school. México finds itself everyday with diverse critical factors as foreign investment level which mainly comes due to import and export related arrangements with third parties. How it is accomplished, for instance, cyber security and environmental related chapters, are critical factors at play due to the management of all which may or may not be provided in applicable current legislation, worldwide. Furthermore, international treatises are characterized by protecting the good standing of companies, protecting them by updated in trade related legislation. This is the reason of Law Faculties must be obliged to train their professors, so they may adapt and take advantage of these tendencies: incorporating within their curriculum and in practice, topics of international law related to intellectual property, labor/human rights, civil & commercial law, allowing students to have their own informed opinion about whether AI or other tech related factors may (or may not) have a specific regulation, and how this is to be handled.
Keywords: Employment rights, informal employment, artificial intelligence mobility of people, external trade, workers, regulation.
I ] Introduction
Mexico has seen a lot of work this decade respect to the actual implementation of International Treatises, particularly with its North American peers and the European Union. Furthermore, even as no free Trade Agreement or formal union whatsoever exists so far between this country and East Asian nations, the presence and increasing foreign direct investment flows into the Aztec Land is undeniable.
The aim of the present research is to see how current International Treatises interact with this nation, how Foreign Direct Investment flows into Mexican territory, and then how the Law curriculums across undergraduate and graduate schools must react to this reality, in order to cope with these changes and prepare students for the current corporate and Private International law scenario, whether they plan is to be in the public sector, in a transnational company, at a Law Firm or having their own entrepreneurship.
The 1990s saw the emergence of Mexico as a signator on the first international treatises, and commercially by far the most important was then, the North America Free Trade Agreement (hereinafter NAFTA) between Canada, the United States and Mexico.
It is estimated from 1994 –year of NAFTA enforcement- up until this moment, foreign trade has increased five-fold between this country and the other signatories, phenomenon which is set to keep going with tendencies such as nearshoring, manufacturing hubs in Bajío and Northern Border, Istmo de Tehuantepec project, to name a few.
Nowadays, overall trade in Mexico represents almost 85%4, and an approximate of more than 4/5 of those exports go to the US and Canada alone, and while those estimates are for the World bank stats in 2022, it is not common to see Law courses –both mandatory and/or elective- where comparative law, international treatises and investments between Mexico and the US/Canada are seen in-Depth, a high contrast in the referred importance of current regional free trade relationship, as well as the languages in which they take place, particularly English and French.
2. Labor Law – employee relations
Since the 1960´s5, several States in the US have enacted labor dispositions, which are positive to employees and Unions, and the federal level has been no exception. All of those regulations favorably protect workers from present and future unfair employer treatment, and have adjusted accordingly to reflect reality respect to minimum wages, salary levels, and Fair Work legislation, as well as family and medical related licenses to company and government collaborators.
As part of the USMCA, there were several collective labor organizations in Canada and the United States requiring Mexico to sign several International Labor Organization agreements, and to enact such Labor-related principles into the national legislation, seen in 2019, 2021 and 2022. Furthermore, during USMCA renegotiation tables, the Mexican government was required as well to show evidence regarding the implementation of such labor protection measures in favor of its employees, to validate fair labor conditions as part of fair trade between the North American markets.
Still, more than 55% of overall Mexican employment is based on informality according to official INEGI statistic records, and while historically low it is still surprising most employment market in the country is under irregular conditions, meaning no benefits, no taxes reporting, no housing allowance, no health protection, no social security, no retirement, and no official existence for government purposes.
The above comparisons are critical as international labor law should also be subject matter for study, particularly due to an increasing mobility trend in working visas such as TN (US) for USMCA professionals or work-related residences that nowadays are found from country to country, whereas migratory patterns from Mexico to its Northern neighbors, are precisely related to job markets.
The USMCA is primarily a Free Trade Agreement designed for Commerce purposes, and not –as later on will be seen- to any type of actual geographical, academic, tax or political integration. In this respect, there is no chapter –unlike organizations such as the European Union- describing overall citizen mobility, and that respect is reserved to the migratory legislation of each country.
In this respect however, Foreign Direct Investment flows push as well investors to move across countries and, while Mexico has its own legislation regarding business visitors, temporary & permanent residence with or without work permits and family visas, this is divergent to Canada or the United States, the later having permanent and temporary residences in parallel to TN visas for professionals derived from the initial NAFTA and repeated under the USMCA.
Coherent with the above, most Law Schools in Mexico must adapt their International Law programs and strengthen practical discussions into how to tramit movement of people and investors across countries more than the passport-related conditions not just in the United States and Canada but in Mexico itself –for foreign citizens-, such as i.- Investor visas; ii.- Temporary residences; iii.- Permanent Residences; iv.- Marriage; v.- Undergraduate & graduate studies; vi.- Underage people; vii.- Adoptions; viii.- Housing; ix.- Government requirements for corporations; x.- Non-Profit and religious Organizations; xi.- Differences between national & foreign individuals; xii.- Comparative Law & immigration procedures.
4. IP Law – AI
The United States is recognized in the world as a world-class leader in industry, and services are leading the way into the 21st century. In these regards, the so-called Big Four of technology, namely Facebook, Apple, Google & Microsoft, are key players into the global stage when it comes to new developments such as Cloud services, internet of things, 5G and 6G, and other intangible IP that have clearly given tangible benefits to those corporations, currently among the world´s largest.
As such developments take place, Artificial Intelligence is not the exception and several software, patents and hardware investments are made thanks to the support from US based entities, including ChatBot and many other developments which, by themselves, are of continuous support for professors, academics and industry, whereas increasingly market trends, political analyses, weather, economics and other indicators are easily, speedily connected through AI powered data server.
Still, according to US public authorities, there is no short-term plan for any type of public intervention regarding regulations of Artificial Intelligence mechanisms; that is, everything will be kept under private entities´ control so far, in order not to undermine creativity and keep commercial promotion of US tech giants into the rest of the world.
Whether good or bad in comparison to other countries –some which will be analyzed later in this paper-, the fact is the United States private entities is clearly a champion in new technologies, so its scope will shape up the fate of this legal issue in the very least in the American Continent for the next decades to come, another IP topic with which Law professors must be faced upon.
5. Civil & Commercial Law – Contracts
It is widely taught since the very first year of Law School in Mexico, that most legal system develop either from the Quran (Muslim Law) Common Law (English) or Roman Law (Continental Europe & Latin America), as an introductory explanation of the legal background in this country and how it came to develop.
A more critical approach will be to have a mandatory subject in one or two semesters to have an in-Depth detail into how Common Law in this scenario functions, particularly regarding corporate law, investments, contracts, criminal liabilities, Intellectual property, and overall foreign trade related subjects.
Furthermore, it will also be important to analyze prior requirements, ie. Advanced language skills in English, Legal English training, and practical visits & work in overseas organizations that may support students towards their professional practice, ie. From 1000-hour internship in different environments, taking part of their evaluations working for specialized projects, and engaging them into the Foreign Trade interest of how Mexico has become a key global player.
One additional focus will be in obligations themselves: peculiarities among the parties, due diligence requirements in the Common Law system, how business associates must be audited prior to engaging into a legal relationship, review of Anti-Money Laundering, Anti-Corruption and Anti-Bribery Statutes, compliance with mandatory tax, foreign trade, environment, agricultural, cyber security and labor regulations, and how the enforcement of contractual duties takes place into the Common Law systems.
Finally, it will also be critical to analyze how different aspects of contracts can be filed in court in diverse jurisdictions, to understand ie. The nature of judges in the US and Canada to openly interpret Civil & Commercial regulations, different aspects of notifications among the parties, and particular toxic or mandatory clauses required in accordance to the nature of the business relationship: mandatory periods, early termination, allowance for internal audits, force majeure exceptions, time of essence principle, jurisdiction, alternate dispute resolution means, among others.
Different from the Free Trade relationship with the United States and Canada going back to the 1990s, Mexico had not opened up to the European Union (EU), an organization dating back to the end of World War II, up until the year 2000 when it came up to sign a Free Trade agreement (FTA)6: according the own European Commission data, the trade flow between both entities more than tripled just considering the period from the signature of the FTA up until 2020, with the EU being the second market in importance for Mexican Exports worldwide.
The European Union however had a distinct nature than the NAFTA, just as the 2018 renewed agreement7 -yet to be enforced- with the Mexican republic is quite different. While the North American region is primarily focused on trade, the EU looks forward into more comprehensive values, and that is reflected in how they engage with their global partners (Mexico being the first in Latin America) in fair trade, environmental policies and protecting Human Rights.
The new agreement with Mexico has now included anti-Corruption, anti-Bribery and Money Laundering prevention chapters which not only are applicable to public agencies but to private organizations –and in turn, citizens- as well, and whereas these types of acts already coexist in widely-used regulations input in international treatises, particularly from the United Kingdom and the United States, there is no public-private comprehensive legislation in Mexican territory and as a consequence, it will highly be distinctive in the nature of both Public and principally, Private International Law in the incoming years.
As a consequence, not only do anti-Corruption, anti-bribery and Money laundering prevention legislation must be drafted nationwide, but also global corporate policies including private & public partnerships and regulation into how citizens and government interact within the country and overseas, and also how to engage these topics into the academic curriculums across Law school’s countrywide in different grades, from Bachelor to Graduate.
2. Labor Law – employee relations
Employment is seen as a human right within the European Union, and its member states have a wide array of labor rights in order to be employed across the EU territory. While the FTA with Mexico does not include a regional employment chapter as both regions are obviously not geographically across each other, there are several labor related requirements which each country has to comply with, and some national legislation has been adapted accordingly. As such and just as in the USMCA case, the academic sphere of legal studies shall be adapted to reflect how the EU Law and FDI flows directly intervene into the local implementation of employment dispositions.
Moreover, it is also noticeable how the EU encourages countries to issue specific-related norms favorable to its workers disrespect of their country of origin, in order for member states to facilitate citizens´ job market preserving their social security, benefits and health care conditions across the EU space.
3. People Mobility
The European Union basically coined the Schengen Space in order for their citizens to freely move within the member countries and, while not exactly identical to the member states of the EU, most of them (and some others not in the EU) are currently part of the Schengen space, literally a “people with no borders” definition. Likewise, most citizens from all over the world have a basic allowance of a 90-day free stay as tourists with no major need across countries once they have entered the Schengen space, and just as fostering businesses and tourism, the “flat” application requirements are also a case study to be able to be developed within Mexican universities in the near future, and to be applicable into Mexico just as the USMCA cases have previously been studied lines before.
4. IP Law – AI
Historically, not just the EU but all of its member states are highly protective when it comes to their citizens´ ability to invent and innovate, as according to historical evidence from the own World Intellectual Property Organization (WIPO), many European countries are in the top 20 when it comes to patent registration and enforcement. This is also noticeable at the WIPO related conventions honored by most countries worldwide, drafted and agreed upon in European Territory: the Paris Convention (1889) on Industrial Property Rights and the Berne Convention (1886) on Copyrights. Furthermore, it is recognizable most Nobel laureates and highly famous writers and art creators are European born as well.
Germany is one of the most noticeable examples of IP related regulation, protecting the innovations of its citizens since the 1800s Federal Constitution, prioritizing the development of research and development through the protection of scientific and technological inventions, and with the foundation of the EU, this multinational organization as enacted members-wide regulation about how to protect and promote Intellectual Property Rights, especially current Data Privacy, Trademark and Artificial Intelligence enforcement.
Unfortunately for the European Union, nowadays there are increasing business reports of “EU overregulation” and “EU innovation underperformance” due to the alleged strict rules which the EU enforces against the free usage and storage of people´s private and sensitive information, as well as how AI can freely develop self-learning models and use them favorably towards commercial efforts –not always with the proper consent of the people involved- while at the same time, as we have seen in the USMCA chapter, some of the world´s best known innovators are either companies from the United States or East Asian Countries, particularly China, Korea & Japan.
While the debate seems to be going on in the few decades to come at least, nowadays the EU is a Human rights referent and, whether we like it or not, its developments must be taught at school in order to understand what is going on in the other side of the Atlantic regarding tech development, citizen express consent to the usage of their data, and the commercial purposes of AI development vis-á-vis the government control of such tools and the limits of such scope.
Each member state has its own civil & commercial legislation for contract drafting, as well as guidelines into the official relevant language to use in case of controversies, in parallel to all of the languages´ use for the case of official EU legislation. Furthermore, the regulation No. 593/2008 stipulates overall EU contractual conditions for private parties, in order to establish how national legislations must harmonize across all member states in commercial and civil matters when engaging into international contractual matters across two or more countries. This is particularly engaging, as Mexican FDI increasingly directs towards more than one EU member state when crossing the Atlantic, and due to the reason it can easily be established in one country of the community and do business in another one, just as ALSEA or UBER currently do, to name a few.
Civil & Commercial Law are the most important aspects of Corporate Law as well, as they are the basis into how investments and trade relationships are driven across several cultures, and they shape the nature of present and future economic trends worldwide in order to prevent risks and engage into increased trade flows.
While Roman Law is recognizable as a fundamental subject in Law School, current EU trends must be taught as well and even Erasmus-like programs promoted, for students to be able to have an in-Depth advantage into how public and private institutions command legal aspects in the civil and commercial scope of the Law, not just with “traditional” players like Germany, France, Italy or Spain, but with new, emerging, seasoned markets as Poland, Hungary, Ukraine, and others in rapidly developing Eastern Europe.
IV ] A special insight into China
Currently, the Far East might be the most economically competitive region worldwide concerning high-tech, thanks to a good portion during the last decades of technology—currently the largest economy on PPP8 and producer of several technologies. While China does not have any type of FTA with Mexico –nor does it appear to be the opening of negotiations anytime soon-, the impressive economic growth during the last decades has made China an interesting country, which needs to be studied and understood, particularly as its status as primary investor and export market for most Latin American countries.
2. Labor Law – employee relations
In 2003, 2005 and 2008, there were several modifications in Chinese Legislation thanks to which written agreements are no longer required by employees to actually demonstrate a labor relationship with their employers, they can legally abandon a job or deny activities within such job that commit their Health and Safety Integrity, positively influencing job formality –where Mexico still has a shameful 55% informality-, with the government penalizing private corporations if they keep their practice of having workers informally or else, that they must bring a written labor agreement to their employees in order to specify the working schedule & conditions. Notwithstanding the foregoing, there is no current openness towards Labor Organizations (ie. unions), nor has the Chinese government executed agreements with the International Labor Organization,
China has more than seven years of setting up regulations for Artificial Intelligence with the creation of the Cyberspace Administration of China (CAC) as a key regulator formulating and enforcing AI regulations for at least nine official documents via its Cyberspace Admin Agency, the Ministry of Industry and Information Technology, and State Council & Party such as: i.- Development plan up to 2030: AI governance to promote industrial, labor (ie. wages, schedules), and tech applications, with China becoming the Global AI leader, ii.- How algorithms securely and controllably disseminate content, iii.- Prohibition of exploitation for on-demand workers, iv.- Forbid anti-competitive practices & price discrimination, v.- Requirements for algorithms to be built and deployed, including deep fakes labeling, vi.- Guidelines for images/chatbots, vii.- Government and public disclosure, viii.- Model auditing mechanisms, ix.- Algorithm registry system and protection of 3rd-Party Intellectual Property Rights: Principle of the Rule of Law, x.-Final human control and liability, x.- Reflect socialist core values.
While there are some voiced concerns on the part of these initiatives taking a political approach regarding the Communist Party intervention in the values that AI systems must follow up. It is also undeniable the People´s Republic of China is quite advanced in formal legal instruments detailing how to work and profit from Artificial Intelligence mechanisms and at the same time protect private information and data accuracy generation and publication. As a country with no prior background in AI legislation, Mexico can learn a lot by developing international tech comparative studies between advanced economies legislative approach towards AI and ours.
V ] Conclusions
The increasing Foreign direct investment flows into Mexico are undeniable now: more and more overseas companies are locating in the national territory, with a special emphasis in regions especially adapted to industrial & service-oriented sectors.
Schools have to empower their law Faculties in adapting and taking advantage of these trends: incorporating more international law topics related to Intellectual Property, labor Rights, Civil & Commercial Law and Comparative Law, and let students from their own, informed opinion on whether AI and other technologies are good or not for development, and if Mexico should keep its strategy of remaining neutral to AI legislation enforcement, as well as in the continuous education of more international matters, both theoretical and practical.
One of the huge advantages is that most Law faculties already have cooperation agreements in force with other Mexican and multinational colleges, universities, research agencies, governments, academia, and companies, as well as their own professors and directives, so that they can develop a proper study plan adapted to current economic and political scenario in the country and properly skill their students into how the International Trade Agreements and referred legislation herein, have already shaped the needs for work in Mexico.
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1 Samsung SDS Miami & México Legal & Compliance General Counsel, Foreign Trade Certifications. LLM Professor at CETYS Universidad, Universidad Xochicalco, Trade & Law College. PhD in Global Development (Economics), and Licensed Attorney in Mexico (2006). Private International Law Specialty at The Hague Academy (2017) and the Organization of American States (2022).
2 Samsung SDS Miami & México Legal & Compliance Associate, UNAM Law Student.
3 Samsung SDS Miami & México Legal & Compliance Associate, UNAM Law Student.
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