Cybernetic and Operational Resilience in the Financial Sector: A Legal Perspective from the International Fintech Field

FINANCE AND BANKING / by Miguel Gallardo Guerra

Stock tokenization, or the creation of digital representations of stocks in a corporation, is an innovation in finance that is beginning to capture the attention of entrepreneurs and legislators alike. The following is a detailed analysis of the validity and legal basis of this practice in Mexico in the context of current legislation.

Background and Legal Basis

The legal framework regulating civil corporations in Mexico is delineated in several provisions. The Federal Civil Code, Article 28, establishes that legal entities must be governed by the applicable laws, their articles of incorporation, and bylaws. The latter defines corporate management and operation, reflecting the stockholders’ will in the company’s management.

The Code of Commerce (hereinafter, “CC”), Article 34, requires merchants to keep minute books, either in printed or electronic format. The Mexican Official Standard NOM-151 establishes the technical requirements for the preservation of electronic documents and the digitalization of physical records, ensuring the validity and permanence of digital information.

Regarding the ability to use electronic means in acts of commerce, the CC, Article 89, expressly allows digital technologies to form such acts. In addition, the CC, Article 89 bis, ensures that data messages have the same legal validity as printed documents, provided that they comply with the corresponding regulatory provisions.

On the other hand, the Credit Instruments and Operations Law (hereinafter, “CROL”) defines stocks as debt instruments that represent a part of a company’s capital stock and recognizes the holder registered in the document and the registry as legitimate.

Regulation of Virtual Assets

The Financial Technology Institutions Law (hereinafter, “FTIL”), Article 30, defines virtual assets as electronically recorded representations of value used as payment. Banco de México Circular 09/2019 restricts the operation of virtual assets to regulated financial institutions, but it allows non-financial entities to operate with these assets under certain conditions.

In this context, tokens are virtual assets whose value depends on their specific context or community. They digitally represent rights over other assets or entities. Its creation is based on Blockchain technology, providing transparency, security, and transaction efficiency.

Analysis and Conclusions

Current legislation in Mexico allows the tokenization of stocks, considering that stocks are commercial securities, and commercial acts may be formed by electronic means. The validation of tokens as digital representations of stocks is aligned with the current legal framework, provided certain requirements are met:

1. Bylaws and Agreements: The tokenization of stocks must be provided for in the company’s bylaws and have the corresponding approvals and assemblies.
2. Registration and Annotation: Tokens representing stocks must be recorded in the corporate books, and the rights transfer must be formalized through specific agreements or covenants.
3. Migration to Electronic Media: In accordance with NOM-151, it is recommended that corporate books and minutes be migrated to electronic media using platforms that allow the use of electronic signatures to fully take advantage of the benefits of tokenization.

When implemented properly and in compliance with current legislation, stock tokenization offers a modern and efficient solution for digitally representing stocks in a company. This facilitates the management and transfer of stocks and opens up new possibilities for innovation in the financial sphere.

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