1 Introduction

Companies that identify a specific social or environmental problem and create a business model to facilitate or develop solutions to said problem from a market perspective are not specifically contemplated in Mexican positive law. This is despite the fact that Mexico has the highest inequality rate among countries belonging to the Organisation for Economic Co-operation and Development (OECD) and one of the highest rates in the world. At the beginning of 2020, before the COVID-19 pandemic, the OECD’s Secretary General and former Secretary of the Treasury addressed Mexico’s business community and stated that the average income of the richest 20% was 10.3 times higher than that of the poorest 20% and that, according to 2019 data from the National Autonomous University of Mexico’s Institute of Social Research, the richest 10% of Mexicans receive 36% of the country’s income, whereas 50% of the population receives 20%.Footnote 1 Therefore, it is critical for Mexico to ensure that businesses, in addition to earning profit, help specific areas of society by operating in ways that have a positive social, environmental, and economic impact.

Some initiatives originating from society’s living forces contemplate the need for Mexico to regulate companies to regulate companies with an important social and environmental impact.Footnote 2 However, this could take some time, as the current public administration, although it claims to prioritize Mexico’s lower-income population, has made few political efforts to eradicate poverty, thereby allowing poor Mexicans to simply remain as a source of political support and campaign votes. Thus, the present chapter highlights the great need for the Mexican government to promote the establishment of a regulatory standard for socially committed companies.

2 Mexico’s Corporate Legal Structure

Although a company is an economic activity, the companies that practice such activity are the product of a legal structure. As pointed out by the Organisation for the Harmonisation of Corporate Law in Africa: “Understood at the legal level, as an organization created for the exploitation of an economic activity and the sharing of the profits which result from it, the company is the theater of the combined application of various categories of legal norms.Footnote 3

Mexican companies are organized under various structures established in various laws.Footnote 4 All of these laws contemplate entities that are eligible to be certified as B corporations.

2.1 Limited Companies

Most companies in Mexico belong to the public limited company (i.e., sociedad anónima) category; they can take various varieties such as fixed capital or variable capital and incorporated or unincorporated governance structures, regardless of whether they are public entities. The fundamental characteristic of this type of companies is their “impersonal nature,” as “the partner is not interested, but his contribution.”Footnote 5 Many small and medium-sized enterprises as well as large corporations fall into this category, as do financial system entities and enterprises that place their capital or securities on the market.

2.2 Limited Liability Companies

The second most common (albeit by a wide margin), type of companies comprises limited liability companies (i.e., sociedades de responsabilidad limitada). Limited liability companies consist of partnerships in which the meeting of a capital is combined with the importance of the people that compose it (although with a maximum limit to the number of members); however, members’ responsibility is limited by how much they contribute to the company.

2.3 Cooperative Societies

Cooperative societies (i.e., sociedades cooperativas) are governed by their own laws, which define it as a: “social organization made up of individuals based on common interests and the principles of solidarity, self-help and mutual aid, with the purpose of satisfying individual and collective needs through the performance of economic activities of production, distribution and consumption of goods and services.Footnote 6

The purpose of these companies is that the owners of the company are both the clients and users of its services, establishing a closed-circle operation wherein synergies and economies of scale are used to obtain goods and/or services for them, their homes, or their productive activities. Owners work together in the production of goods and/or services, contributing their personal, physical, or intellectual work, attracting resources through money saving deposits from their partners, and providing said partners with credit using the funds raised. According to González Bustamante, “The historical antecedents of this institute go back to the days when the feeling of solidarity or the need for mutual help was born among men.”Footnote 7 However, it seems that social cooperative societies are focused on meeting needs that differ from those contemplated by social enterprises.

2.4 Simplified Stock Companies

Having been only recently adopted within the Mexican legal framework, following the example set by France and Colombia, the simplified stock companies (i.e., sociedades por acciones simplificadas) category has emerged in Mexico, aiming to formalize small businesses, which may comprise only one partner. Simplified stock companies are structures intended for small enterprises, so they could hardly qualify as candidates to allocate part of their income to promote social or environmental causes. Rather, these societies should be seen as an object to be promoted by social enterprises.

2.5 Others

As with cooperative societies and simplified stock companies, the same thing can be said of the corporate structures in agrarian law. Although these structures are destined to an activity worthy of being promoted, they typically serve more as objects, rather than actors, of the social drive.

2.6 Corporate Governance

An important reflection on Mexico’s business sector is that the principles of corporate governance, as enunciated and promoted by the OECD,Footnote 8 have been accepted in Mexican business practice, following the Code of Principles and Best Practices of Corporate Governance,Footnote 9 which is not a legally binding set of rules but rather a set of recommendations (i.e., soft laws).Footnote 10 However, in certain sectors, these principles have become mandatory standards; such is the case of the entities that make up the financial system, as all of them are required by law to implement corporate governance principles and standards.Footnote 11 The presence of these increasingly widespread principles and structures in Mexico’s commercial environment makes the country a fertile ground for social enterprises.

3 Other Non-Business Corporate Structures

Since Mexico is a federal republic, some issues have been preserved for legal regulation by the states that make up the federation. Such is the case of what happens with three activities that must be considered to promote activities with social value: entrepreneurship, social welfare, environmental care as do the certified B-corporations. Those three activitiesFootnote 12 are: private assistance; social, sports, cultural or artistic activities; performance of liberal professions.

3.1 Assistance Institutions

Assistance institutions can be defined as: “legal persons of public interest that, with assets irrevocably assigned to them by individuals, permanently carry out humanitarian acts and pursue purposes of assistance, non-profit purposes and without individually designating the beneficiaries.Footnote 13

Assistance institutions comprise groups that are ordinarily subject to regulation and supervision by the government, which monitors their actions and performance to prevent them from being used for commercial purposes, as well as to promote and support their goals. Specific laws have been issued for their regulation, such as the Social Assistance Law (a federal law) and pieces of legislation issued by each state’s government (Mexico is a federation with 32 independent entities).Footnote 14 In the country’s capital, Mexico City, there are 506 private assistance institutions.Footnote 15

Assistance institutions’ economic resources are usually obtained from individual donations, foundations created either by living persons or mortis causa in wills, and organizations dedicated to making these types of contributions. A great example of such institutions is the Nacional Monte de Piedad, a non-profit private assistance institution (originally established as a financial institution) that has operated uninterruptedly for 244 years; its main aim is to help people in need. It provides social aid mainly by offering pledge loans and other financial services at the lowest interest rates in the market, fair appraisals, and coverage throughout the entire Mexican Republic. With the operational remnants of the pledge loan and financial services, social investments are made in projects of health, education, housing, gender equality, food security, community, and economic development through 600 private assistance or charitable institutions and other programs.Footnote 16

3.2 Civil Associations (Asociaciones civiles)

Regulated by each state’s civil codes, civil associations are non-profit legal entities that are created through a contract through which the associates agree to pursue a common goal that is not prohibited by law and not predominantly financial in nature.

This legal structure is widely used for the realization of educational, cultural, sports or mutual aid activities. “The civic association is a contract that is frequently observed by persons who join their efforts for purposes other than commercial gain.”Footnote 17

Although these associations are restricted from dedicating themselves to a predominantly economic activity, they manage resources from associates or donors’ contributions, which allows them to carry out their activities. If during these activities they obtain profits, these must be reinvested in their activities. Further, these associations will never be able to distribute profit, interest, or dividends to the associates.

3.3 Civil Partnerships (Sociedades civiles)

As with civil associations, civil partnerships are formed through a contract between partners for the purpose of conducting activities that are primarily economic and for-profit in nature but should not be classified as commercial in nature. “Civil societies are private law businesses that primarily pursue economic goals through the provision of goods or personal labor, but without suggesting commercial activity.”Footnote 18 A classic illustration of this organization is the group of professionals who conduct their professional activities in these firms, such as lawyers, public accountants, physicians, and architects.

3.4 Trusts

Trusts have become more common in Mexico. A trust consists of an affectation that one or more people make of certain assets to an institution, regularly a bank, to be destined for a specific purpose, without establishing it as a legal entity but rather as an autonomous entity. This purpose can be the temporary or permanent performance of certain activities. Further, this purpose may be cultural, social, ecological, promotional, or related to a certified B corporation’s activities.

As it can be seen from the description of these legal structures, although they are not commercial entities, they can be used and qualified within the purposes of the so-called Certified B Corporations or entities for social or environmental impulse.Footnote 19

4 Ecological Legislation in Mexico

In Mexico, companies’ environmental impact is strictly regulated; companies have a series of obligations to preserve the environment. These norms are established in the country’s Constitution, which states that “Everyone has the right to an adequate environment for their development and well-being.”Footnote 20 These laws include the following:

  • General Law of Ecological Balance and Environmental Protection

  • General Law of Sustainable Forestry Development

  • General Law of Climate Change

Further, we must also consider laws and regulations in each of Mexico’s 32 states, as well as the different international Agreements and Treaties to which Mexico is a party. All these rules and regulations focus on environmental risk-related issues such as:

  • Land use

  • Proximity of companies to population centers

  • Supervision of high-risk activities

  • Disposal and management of hazardous materials and waste

  • Nuclear energy, noise, vibrations, thermal and light energy, odors, and visual contamination

This indicates that the protection of the environment and the purposes pursued by a company with social and environmental impact (i.e., a certified B corporation) are covered. Subsequently, we will explore how a company is regulated as a promoter of ecological well-being.

5 Fiscal Legislation

There is a tax regime in Mexico that authorizes any taxpayer, as a natural or legal person, to deduct from their income the amounts contributed or donated to charitable entities and activities, after they have received the authorization to do so. Mexican tax lawFootnote 21 exempts from income tax the following non-profit legal entities: assistance or charitable institutions; civil societies or associations; organized non-profit and authorized to receive donations; as well as associations, civil societies, and trusts that are dedicated to activities considered worthy of being promoted, including those conducted in pursuit of the objectives of certified B corporations. These activities include the following:Footnote 22

  • Promotion and dissemination of the arts

  • Educational and research activities

  • Protection of the nation’s cultural heritage

  • Libraries and museums

  • Promotion of citizen security

  • Defense of human rights

  • Participation in matters of public interest

  • Promotion of gender equality

  • Protection of natural resources and the environment

  • Civil protection

  • Advocacy

  • Consumer protection

  • Agricultural or artisan products projects

  • Granting of scholarships

This means that the country already has a legal framework that provides significant incentives for the development and promotion of social and environmental activities.

6 Certified B Corporations in Mexico

In Mexico, there are 64 companies certified by B Lab as B-corporations. Some were created in Mexico and are currently operating under Mexican law, while others are foreign companies that have a legal presence in the country.Footnote 23 These companies are listed in the Appendix. To obtain such certification, Mexican companies must include in their statutes the following conditions:

  1. 1.

    That the corporate purpose of the company includes the mention of seeking a positive material impact on society and the environment.

  2. 2.

    That the company’s administrative body takes into account any decision or action that influences (i) the shareholders; (ii) its workforce, subsidiaries, and suppliers; (iii) its clients and consumers; (iv) the community; (v) the local and global environment; (vi) its long-term and long-term performance; and (vii) its ability to fulfill its corporate purpose. However, none of this implies the creation of special rights for third parties, as the company’s by-laws determine the rights and obligations of the shareholders and the company’s legal representatives, as well as their actions toward third parties. Nevertheless, this does not allow third parties to enforce these laws (thereby affecting the company’s shareholders or legal representatives) beyond what is established by law.Footnote 24 In Mexico, a Board of Directors of the Global Movement and Initiative of B Corporations was established in 2012, joining the global B movement in 2014.Footnote 25

On the creation of an ad hoc legal framework for these companies, it should be noted that there is a plurality of opinions:

The legal figure that most of them start out as is that of a civil association. From my experience, most of them start out like that and eventually begin to operate under hybrid models or become a SAPI (Sociedad Anónima Promotora de Inversión), for example, when they want to raise investment.Footnote 26

For some, this issue must be exclusively fiscal because the incentives must come from the allocation of a tax prebend. Some ideas of how this issue can be addressed in legislation are displayed in the following section.

7 Ideas to Develop a Legal Regime for Social Impact Companies in Mexico

This section discusses the development of a legal regime for companies eligible for inclusion in the B-certification program. It also explores the goals for which certified B corporations have been formed by the movement led by B Lab, which states its purpose as follows: “Building on our standards and certification process, our network leads economic systems change to support our collective vision of an inclusive, equitable, and regenerative economy.Footnote 27

7.1 Entity Rating

Muhammad Yunus defined social enterprises as organizations formed with the primary goal of resolving a social, environmental, health-related, or similar problem and the secondary goal of generating sufficient revenue to be sustainable over time.Footnote 28 Further, as Ortega mentioned at a recent symposium held at the National Autonomous University of Mexico, […] social businesses […contribute] to the creation of social value through productive activities that generate revenue for social benefit activities [].Footnote 29

One way to achieve that is by establishing a new type of corporate structure that adheres to the principles espoused by socially responsible enterprises. “The objective of such a commercial society would not be purely economic, but would encompass a much broader purpose. Initially, this approach was limited to the directors’ strategic decisions, but it is now reflected in the organization’s governance structures (articles of incorporation or shareholders’ agreements).”Footnote 30

A way to address the issue in Mexican legislation and practice could be to qualify a corporate structure for those that already operate within the country with under the category that has been suggested: social and environmental impact entities (entidades de impacto social y ambiental). This could prove more beneficial than creating a new category of corporate enterprises. The global economic crisis currently prevalent makes it difficult to launch an initiative of such size to develop such companies exclusively for the purpose of promoting social and/or environmental well-being.

However, it may be possible to motivate extant companies to dedicate a part of their energy and profits to this purpose, especially if they are granted appropriate fiscal incentives. Such a transition for currently existing businesses is made possible by their legal structure. Valderrama et al. noted the following: “this demonstrates that the company must be lucrative in order to continue. Economic duty is at the base of the pyramid; legal concerns necessary for the company’s well-being are at the second level; ethical responsibility is a layer above the previous two; and philanthropic obligation is at the top of the pyramid.”Footnote 31

The study described above21 reached the same conclusion when analyzing the feasibility of creating a new legal structure for social enterprises in Mexico. In other words, given the country’s current political circumstances, it would be preferable to use the existing legal structures while adding certain provisions.

To this end, the study states: “However, we believe that the political environment is unfavorable, given the legislator’s current priorities with regard to the regulation of the extant types of businesses; in particular, cooperatives, which the legislator could classify them alongside SEs due to their mission containing a social and solidarity economy component.”Footnote 32

7.2 Requirements

To accomplish the integration of social enterprises into the existing legal framework, it is necessary to define what constitutes entities of social and environmental impact. Such entities would be required to:

  1. (a)

    Be constituted for profit purposes, which is a typical characteristic of commercial entities. An exception to this requirement could provide for non-commercial entities such as private assistance institutions, civil associations, civil societies, cooperative societies, etc. that could be subject to obtaining the qualification provided they meet the other requirements listed below.

  2. (b)

    Dedicate a part of their profits or income to social and environmental projects.

    1. a.

      At the discretion of each company according to its statutes

    2. b.

      According to a catalog of activities that the authorities define as suitable because they are those that the State considers that it should encourage according to its social and economic policies.

      Typically, such activities could be:

      1. i.

        Paying attention to basic health and wellness requirements.

      2. ii.

        Providing access to basic public services.

      3. iii.

        Supporting the defense and promotion of human rights.

      4. iv.

        Promoting social inclusion and mitigation of inequality.

      5. v.

        Promoting cultural activities.

      6. vi.

        Promoting economic actions and support the economic development of social entrepreneurship.

      7. vii.

        Innovating and developing a sustainable infrastructure.

      8. viii.

        Preserving and improving the environment.

  3. (c)

    They can do it directly or through a subsidiary of the same corporate group. In this case (which illustrates the integration of a corporate group), it is possible that a non-profit entity (e.g., a civil association) may become part of it.

  4. (d)

    The way to do so may consist of a direct economic investment, a reinvestment of profits, or the integration of reserves that are later redirected for such purposes.

  5. (e)

    Have a corporate governance structure that establishes a board committee that deals with social and or environmental projects.

  6. (f)

    Include in their annual report what has been done in the social or environmental field (vis-à-vis sports, entrepreneurship, education, health, education, culture, housing, and environment-related activities).

  7. (g)

    Comply with ecological regulations and economic competitiveness-related industry standards in their specific sectors (e.g., healthcare, finance, communications, etc.).

7.3 Regulatory Authority

Some of the countries that have legislated the issue of the B corporation have designated a governmental department (according to their own legal and organizational structure) to supervise companies’ registration, regulate the activities that companies must undertake to be promoted, supervise the fulfillment of the objectives such entities, approve the projects in which the resources are invested, and authorize the provision of incentives. In Mexico, the Ministry of Economy or some decentralized body could take on such responsibilities.

The existence of one such authority and the powers granted to it must be measured according to how much state intervention is determined to be appropriate. Particularly, it may preferable that the legal regime only has a basic definition, and that state intervention remains as limited as possible. This is because B certification is about promoting social and environmental benefits instead of weighing companies down with bureaucratic responsibilities. Self-regulatory entities that make up the entities themselves tend to be a good answer.

This authority could exist independently from the B Lab network. Footnote 33

7.4 Incentives

Fiscal stimuli are often used to promote state-related activity effectively. Limiting fiscal voracity in the sake of identifying certain behaviors among the governed is an objective that governments must pursue, as fostering new and more active businesses will result in increased collection. According to Calvo Nicolau, “there are times when the designer of the norm seeks to promote behaviors between individuals through the law; to accomplish this, they arrange for the awarding of incentives or rewards to those who adapt their behavior to the promoted behavior.”Footnote 34

Legislation must preserve the deductibility treatment of donations received to be invested in such activities. Likewise, it will be convenient to consider giving a favorable tax treatment to the certified entity. Those incentives could range from paying taxes at a reduced rate; being able to deduct what was invested in social or environmental activities; having access to other types of deductions; alleviating bureaucratic requirements for filing applications; as well as obtaining permits and authorizations, frequent periodic declarations, and secondary tax obligations. Tax incentives should also be addressed to the entity’s shareholders or partners in regard to dividends or participations received or in the case of the sale of shares or social stock.

8 Conclusion

The purpose of certified B corporations is highly noble and worthy of being promoted. Although Mexico does not have a special legal regime for the creation of this specific type of entities, it does have structures in its legislation and practices that can be used for this purpose. Therefore, there is a system in place that can be used to supervise the registration and certification of social and environmental impact entities. It is possible to build a suggestive regime that invites enterprises to adhere to the program and philosophy of the project.