ARTICLE
15 March 2024

Mexican Retirement Funds Financial Regulations Amended

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On February 16, 2024, the Ministry of Finance and Public Credit, through the National Commission of the Retirement Savings System ("CONSAR"), issued an amendment to the General Financial Provisions of the Retirement Savings Systems (the "Financial Regulations" or the "CUF").
Mexico Finance and Banking
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On February 16, 2024, the Ministry of Finance and Public Credit, through the National Commission of the Retirement Savings System ("CONSAR"), issued an amendment to the General Financial Provisions of the Retirement Savings Systems (the "Financial Regulations" or the "CUF").

This resolution modifies, supplements, and repeals multiple provisions and annexes of the CUF with the objective of (i) enhancing the existing risk management mechanisms applicable to Retirement Funds Managers ("AFOREs"); (ii) providing greater clarity regarding the calculation of the investment limit in foreign assets through Investment Trust Certificates ("CERPIs"); and (iii) incorporating Environmental, Social, and Governance ("ESG") considerations into the reporting regulation applicable to investments made by AFOREs.

CHANGES IN RISK MANAGEMENT REGULATIONS

DISASTER RECOVERY PLAN AND BUSINESS CONTINUITY PLAN

The amendment incorporates the obligation for the governing body of the AFOREs to develop a Disaster Recovery Plan ("DRP") and a Business Continuity Plan ("BCP") with the objective of minimizing the impact of adverse events on the ordinary course of business and operations, which must be reviewed annually by the risk area manager and the investment area manager. The BCP must be part of the Financial Risk Management Policies and Procedures Manual (the "Financial Risk Management Manual") of each AFORE, must have a responsible person designated by the governing body, and must comply with the minimum requirements established in Annex "Z" of the CUF. Furthermore, the amendment stipulates the obligation to have a BCP and a DRP as a best corporate practice applicable to the managers of Structured Instruments. 1 Under the amendment, AFOREs have 180 business days to develop and implement a BCP and DRP.

ADDITIONAL RISK MANAGEMENT AMENDMENTS

The amendment includes the following provisions regarding risk management:

  • Expands the Financial Risk Committee's responsibilities, incorporating the determination of methodologies for (i) measuring the profitability and performance of Structured Instruments; (ii) valuing investment assets in situations where their price cannot be provided by the corresponding price provider or custodian; and (iii) determining the fair value of the investment assets eligible for carrying out operations through the over-the-counter trading system. Such methodologies must be integrated into the Financial Risk Management Manual.
  • Expands the Comprehensive Risk Management Unit's ("CRMU") information obligations regarding financial risk matters, including the obligation to report (i) the profitability and performance of each structured instrument periodically, and (ii) the alignment percentage of the investment portfolio to the classification with respect to the total assets of the corresponding investment society.
  • Expands the definition of investment societies' minimum operation applicable in case that the operation recovers at an Alternate Operation Site.
  • Establishes the obligation for administrators to implement internal, secure, and confidential reporting channels through which irregular behaviors, possible acts of corruption, or possible breaches of applicable provisions can be reported.

AMENDMENT RELATED TO THE INVESTMENT LIMIT IN FOREIGN ASSETS THROUGH CERPIS

The amendment also provides for a comprehensive reform to Annex "B" of the CUF related to structured instruments, FIBRAs (including FIBRAs E), and securitized instruments. The reform of said annex, which sets forth the guidelines for the classification of CERPIs, based on the percentage allocated to investments in Mexico, is particularly relevant. In this regard, the resolution provides that:

  • Those investments whose final destination, underlying asset, or economic benefit is within Mexican territory or which have potential outreach to enhance economic growth and job creation in Mexico are deemed investments within Mexican territory. 2 Investments in other structured instruments or transitory investments used for liquidity management are not considered as investments in Mexican territory. For these purposes, investment in national territory will be computed as follows:
    • For credit or debt strategies that are transferred from another entity to the CERPI, they will be accounted for considering amounts effectively deployed by the corresponding CERPI, without considering any co-investment.
    • For newly created credit or debt strategies, directed at national companies, which originate from the investment of the CERPI, both the directly deployed amount as well as the co-investment will be considered.
  • CONSAR will verify the Mexican investment percentage at the end of April each year, based on information received at the end of December of the immediately preceding year, and will maintain this percentage until the next review. Only CERPIs with an issuance date of more than one year will be subject to verification. It is important to highlight that—as of the issuance date of the relevant CERPIs, and until the first verification conducted by CONSAR—the corresponding investment made on such CERPI will not count toward the statutory 20% investment cap applicable to SIEFOREs on foreign assets or international CERPIs investments. 3
  • For purposes of determining the investment percentage within Mexican territory of each CERPI in connection to the minimum statutory requirement set forth in the Twenty-Fourth Provision, Section VI of the Investment Regime Regulations, 4CONSAR will consider:
    • cash effectively deployed in activities or projects within Mexican territory by each series, or subseries, of the relevant CERPI, with respect to the total capital effectively called by each series or subseries thereof; 5and
    • the pro rata share of cash effectively deployed by co-investors in activities or projects in Mexican territory, with respect to the participation of the rest of the series or CERPIs that invest in the same fund or vehicle.
  • Each series, or subseries, of a CERPI will be considered as an independent issuance for purposes of the foregoing, even in instances where one SIEFORE has exposure to multiple series or subseries of the same CERPI.

AMENDMENTS REGARDING ESG MATTERS

The amendment also incorporates the administrators' obligation to report non-financial information related to the sustainability of the portfolios they manage to CONSAR, adhering to a widely recognized sustainable information disclosure framework. Additionally, it incorporates investment decision-making and risk management ESG policies into the questionnaire for the selection of Structured Instruments, FIBRAS, and securitized instruments.

Footnotes

1. For purposes of the CUF, "Structured Instruments" means securities issued by trusts whose purpose is to invest or finance companies or projects within and outside of Mexico (i.e., CKDs, CERPIs, ETFs).

2. This is consistent with the latest criteria upheld by CONSAR, according to which it is possible to take the final destination of investments made by international collective investment mechanisms into account (e.g., American or Canadian Limited Partnerships) for the purposes of computing the percentage of investments made in national territory. That is, if a foreign collective investment mechanism, in which a CERPI makes an investment, considers Mexico as a relevant jurisdiction for the purposes of its investment strategy, it would be deemed relevant, and can be taken into consideration in the annual calculation of the percentage of investments made in national territory.

3. Said limit is set forth in the Sixteenth Provision, Section I, Subsection d) of the General Provisions that Establish the Investment Regime to which Investment Societies Must Adhere (Disposiciones de carácter general que establecen el régimen de inversión al que deberán sujetarse las Sociedades de Inversión) (the "Investment Regime Provisions").

4. Said regulatory minimum establishes that the SIEFORES may only acquire those CERPIs that allocate at least 10% of the total maximum authorized amount of the issuance to the investment or financing of activities or projects within the national territory, of one or several companies.

5. This includes the capital raised on the initial issuance in which the corresponding SIEFORE participates, subsequent capital calls associated with said issuance, and leveraged financing.

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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

ARTICLE
15 March 2024

Mexican Retirement Funds Financial Regulations Amended

Mexico Finance and Banking

Contributor

Mayer Brown is a distinctively global law firm, uniquely positioned to advise the world’s leading companies and financial institutions on their most complex deals and disputes. We have deep experience in high-stakes litigation and complex transactions across industry sectors, including our signature strength, the global financial services industry.
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