Without land there is no oil; without oil there is not enough energy; and without energy there is no development. Land contracting is possibly one of the least considered aspects when developing a project, it is also continually undervalued and is probably one of the most neglected in the energy sector, possibly because it is exhausting, complex, technical, very sensitive, since in addition to the existing insecurity in the field due to criminality, it can lend itself to corruption and bad practices, which could lead to classify it as a risky activity.
Therefore, these activities require specialized attention, integrity and accredited capacity, in addition to comprehensiveness, since knowledge, both theoretical and empirical, is elementary, as well as technical knowledge, since in order to contract the surface area, multidisciplinary services are required in the areas of: negotiation, valuation, measurement, psychology, sociology, security, environment, biology, agronomy and legal services, since land is the basis and many energy infrastructure projects depend on it.
In accordance with the duty to be, the negotiation, contracting and payment of considerations must be carried out in compliance with the law, always following the best practices of the energy industry, conventionality and constitutionality, observing customs and the principles of equity, legality and equality, since most of the projects are of long duration; their development and permanence depend significantly on good relations and respect among the related parties.
A major problem that regularly arises before and during the development of projects is related to the rule, because it may be in force but not comply with its purpose -teleology-, i.e., it may not be effective. In this case, the legislator is not obtaining the expected effects or results, which gave rise to the creation of the provision. From the above, the following can be inferred: if society does not observe the rule, or the authority does not apply it or does not sanction its breach, it is a dead letter, like a toilet without water; however, as we will see below, that is not what is really serious, because the background is much more complex.
The normative purpose is to avoid or achieve an effect in behavior, in conditions or circumstances; it intends that a thought, an idea or the will manifested in the norm transcends into reality; if it is not achieved, if the results are not obtained, the environment decomposes, it becomes foul.
Such is the case of Article 75 of the Regulation of the Hydrocarbons Law (LH), which is transitorily applicable to the Hydrocarbons Sector Law (LSH). Therefore, this article intends, through the identification of the problem, to improve the aforementioned provision, building a precept that is effective, functional, compliant and applicable, avoiding, with the ad hoc wording, to continue harming the regulated parties.
Prevention and regulatory improvement is possible, and in this case, we dare to qualify it as indispensable, since the Regulation of the Hydrocarbons Law is the cause of the setbacks, and its Article 75 is the obstacle that must be overcome to achieve order.
The reference to the Regulation of the LH is relevant, since it serves as a reference for the preparation of the Regulation of the LSH, which is currently in process and must be published within 180 days from the publication of the Law of the Hydrocarbons Sector LSH, which happened on March 18, 2025. According to the eighth transitory provision of said Law, the Regulations of the Hydrocarbons Law of 2014 will continue to be in force, so many of the figures, processes, procedures, sanctions, deadlines and terms, continue to be implemented today.
We reiterate that a great option, if not the solution, lies in modifying or eliminating the impeditive provision -Article 75 of the RLH-, since the risks, costs and consequences generate severe impacts both in the social and public spheres, as well as in the economic sphere. The wording should consider, in the case of establishing a time period, the exceptions, exceptions, as well as the penalty for non-compliance.
A regulatory norm of this magnitude, which includes oil, which has come to represent up to 13 % of the national gross domestic product (GDP), and more than 40 % of the ordinary and fiscal income, demands efficiency, both for the social, economic, environmental and above all logistic aspects, elementary for the daily operation; precisely for this reason, it is regulated by a special law, related to the special matter of hydrocarbons, regulatory of the Mexican Political Constitution.
In this sense, the Mexican State, in order to ensure the fulfillment of its purposes, identifies, reserves and develops, by constitutional mandate, in an exclusive manner, activities that it classifies as strategic for economic development, growth, general interest, security and public utility. To this end, it prepares a National Development Plan, the road map where the commitments, objectives and mechanisms to achieve them in each government administration are established. Delimiting it to the subject that concerns us, we observe in said plan the fundamental objective of oil production with Petróleos Mexicanos (PEMEX), This is set at 1.8 million barrels per day, which may imply contracting more land and higher consideration payments.
Fulfilling this objective implies operational efficiency, but also regulatory effectiveness. In order to achieve this goal, the State is obliged to carry out strategic activities; this requires a rule of law with security, certainty and legality, as well as the occupation of land to carry out the activities of exploration, extraction, refining and transportation of hydrocarbons, which for their development require the soil and subsoil where the oil is found.
The subject of civil law is fundamental in the contracting process; it is supplementary in hydrocarbons and agrarian law; likewise, the guidelines and model contracts refer to it directly in the contractual models, also because it deals with real estate and real rights, among them property, likewise, it has already been determined that the competent authority that must validate the contract is the district judge in civil matters. The comment is made in order to point out that the Regulation must consider these aspects for its elaboration.
Consequently, in order to use, exploit or enjoy the surface or subsoil of such real estate, it is necessary to negotiate and contract with the owners or holders of the respective real rights, since in addition to containing the hydrocarbons, the activities of the value chain of the same, contained in Article 3 of the LSH, are carried out there, as well as the facilities, equipment and machinery.
For this reason, hydrocarbons are a matter of public order and social interest, and the use and occupation of surfaces is preferential over any other form of property. The foregoing reflects their importance: they are vital for Mexico's society and economy; therefore, for no reason should the activities of the oil sector be interrupted, impeded, hindered and much less made impossible by a regulatory assumption that, as evidenced, presents deficiencies.
In addition, this leads to wasting time, delaying projects and unnecessary expenses, incongruously, instead of helping to speed up, promptly and expeditiously, it goes against, even knowing the lack of personnel and further overloads the Judiciary, giving it more work; the same happens to the government as regulated and to the companies, since in addition to remaining in uncertainty and in a state of non-compliance, they must file legal appeals fighting the resolutions contrary to the purpose.
It has become a practice in the Judiciary to apply the aforementioned jurisprudence from the outset when receiving an untimely request, becoming a vicious circle, loss of resources and non-compliance, since the prevailing criterion is to determine that if it is not filed within 30 calendar days, the jurisdictional body cannot validate it and, consequently, cannot give it the character of res judicata, arguing that according to the Federal Code of Civil Procedures, such term becomes a ground of inadmissibility; Therefore, the District Courts and the Unitary Agrarian Courts, in accordance with the procedural rules, proceed to dismiss the validation requests. The above has worsened, since, in the current practice, it turns out that the authority overlooks the ground of inadmissibility, being until the judgment stage that determines the impossibility of validating the contract because the agreement has been filed out of time, causing the regulated parties to spend more money and lose more time.
Now, this document intends to place us in the new reality, according to the new model, trying to improve the previous one, and for this it is required to expose the reality experienced by the subjects previously regulated by the LH and how the LSH is now, we refer to the assignees, contractors, permit holders and I consider that it can get worse with the issue of the participants, although the mentioned Law does not consider them expressly or at least in a clear manner as directly regulated, it is clear that they can act as operators, to whom the obligations inherent to the operation correspond, and expressly the payment of considerations in hydrocarbon matters for the use and surface occupation and rights of way over the land.
In the new energy model, the figure of participants plays an important role, under the mixed contract modality, derived from a Mixed Assignment, which will involve numerous negotiations and contracting of surface rights. So much so, that the director of PEMEX pointed out that by the end of 2025, it is estimated that 66 thousand barrels per day (mbd) will be contributed to production through the first 17 mixed contracts, pointing out several national private companies.
It is evident from the published legislation and the current energy policy, de jure and de facto, recognizes the need for collaboration with the private initiative, based on the reformed Political Constitution, private parties continue to be empowered to participate through Exploration and Extraction Contracts, in addition the Secondary Legislation offers other contracting modalities, among them the figure of the participants.
In order to contextualize, it is important to point out the national contribution of the private sector to hydrocarbon production; for this purpose, we will take as a reference a recent official public data. By January 2025, they represented 5% of national production, with 88 mbd. It is relevant to take the aforementioned percentage as a starting point, since the new mixed modality contemplates the probable production of the participants, so that approximately 154 mbd would be reached by the individuals and a production of one million 739 mbd, which would be equivalent to 8.86%. Even with this contribution, there would be a 61 mbd differential with respect to the expected six-year average production goal of 1.8 million barrels of liquid hydrocarbons per day.
The above offers areas of opportunity, but also challenges and challenges; it entails serious risks in terms of contracting surface areas and rights of way, both for public companies of the State and for private initiative, because it must be considered that the related contracts will be validated with a new Judiciary.
The regulated parties must continually contract surface areas, and now the assignee-permittees will also do so, although it is not clear how they will implement Chapter IV. On Surface Use and Occupation; meanwhile, the Guidelines for Mixed Development Schemes have already been published in the Official Gazette of the Federation (DOF).
At this point, knowing the current legal reality and needs, it is necessary to go into depth, starting in an analytical way, from the general until we get to the particular subject, we will address the origin, forms, causes and consequences of the phenomenon in question.
Let us begin by addressing the hierarchy, the regulatory subordination; let us start from the origin and the teleology of such mandate, for this, it must be specified that to the regulated parties, the legislation (both the repealed Hydrocarbons Law and the current Hydrocarbons Sector Law), very specific obligations are imposed, for purposes of using or occupying the land surfaces; This is an indispensable element to develop several of the activities included in the value chain of the hydrocarbons industry, specifically those contained in Article 3 of the Law of the Hydrocarbons Sector, which require equipment, strategic facilities, roads; including safeguarding rights over the spaces or security strips determined, temporarily or definitively, over the properties where communication routes or hydrocarbon transportation lines are projected.
The origin of the considerations in accordance with the general terms and conditions, currently prevailing in terms of occupation or surface affectation and compensation, derive directly from the Energy Reform Decree of the Political Constitution of the United Mexican States of 2013, specifically in its eighth transitory article:
Due to their strategic nature, the activities of exploration and extraction of oil and other hydrocarbons, as well as the public service of transmission and distribution of electric power, are considered to be of social interest and public order, and therefore will have preference over any other activity that implies the use of the surface and subsoil of the land affected by such activities.
The law shall provide the terms and general conditions of the consideration to be paid for the occupation or surface affectation or, as the case may be, the respective indemnification.
The temporary precept could not have been clearer. It fulfilled its function by regulating at that time the transition process between the expropriation and appropriation of oil, precisely stating the instructions for the competent authorities, in this case, the Legislative Power, since the second paragraph of the mentioned transitory provision states: «The Law shall provide for the terms and general conditions of the consideration».
The constitutional precept established the guidelines, magnitude and hierarchy of the provision: social interest, i.e., collective, well above the individual; it also decrees it to be of public order, thus limiting the freedom of individuals, subjecting the validity of their acts, being subject to nullity in case of affecting the fundamental interests of society, establishing the position of primacy of the common welfare, the public interest, over private interests, granting it the category of preferential.
Secondarily, the Legislative Power processed the respective Law on hydrocarbons, in compliance with the second paragraph of the aforementioned constitutional transitory provision: «The law shall establish the terms and general conditions of the consideration to be paid for the occupation or surface affectation or, as the case may be, the respective indemnification». This is how Chapter IV. Surface Use and Occupation, contained in Title Four. Provisions applicable to the Hydrocarbons Industry, comprised of 17 precepts, numbered from 100 to 117, which established the concepts, processes, procedures, forms and times to occupy the territorial surfaces included within the areas where the Mexican State awards rights to carry out specific activities of the hydrocarbons value chain.
From a current perspective, with the energy reform of 2024 substantial changes were introduced, starting with the repeal of the Hydrocarbons Law, and the publication on March 18, 2025 of the new Hydrocarbons Sector Law, which retained several of the figures, rights and obligations of its predecessor, including Chapter IV. Of the Surface Use and Occupation, with some variations, but in essence the negotiation, contracting, valuation and judicial validation processes are similar, they must adhere to the bases, which contain the same nine points, to the Guidelines and to the contract models issued by the Ministry of Energy (SENER), currently in force in 2016 and to the provisions of the LSH.
While the SENER prepares the regulation and the mentioned Guidelines, the still in force ones of the Hydrocarbons Law continue to apply, so that the mentioned article 75 is in force, but there is also a jurisprudence regarding its interpretation, since, as we pointed out, the deficient normative technique has reached the point of contradiction of thesis. As can be seen in the transcription, article 75 of the Regulation of the Hydrocarbons Law establishes a mandatory term for the presentation of the contract to the competent judicial authority, by means of the respective request through voluntary jurisdiction, limiting said act of presentation to a period of 30 calendar days after the signing of the contract:
For the purposes of Article 105 of the Law, the Assignee or Contractor shall submit in writing to the competent jurisdictional body and to the Ministry of Agrarian, Territorial and Urban Development, the agreement reached as referred to in said provision, within thirty calendar days following the execution thereof.
This error was extended to the Guidelines and Model Contracts for the use, enjoyment, affectation or, as the case may be, acquisition of land, goods or rights to carry out the activities of exploration and extraction of hydrocarbons and transportation through pipelines, which obviously should be considered prior publication of the next ones. Currently they state:
THIRTY EIGHTH - Presentation of the contract before the authority. -It will be established that the Promoter will submit to the Unitary Agrarian Court or District Judge in civil matters, as the case may be, the contract for its validation and will deliver a copy thereof to the SEDATU, the National Hydrocarbons Commission or the Energy Regulatory Commission, according to their competence.
...Annex B
TWENTY-SIXTH. PRESENTATION OF THE CONTRACT BEFORE THE AUTHORITY. The (PROMOVENTE) undertakes to submit a copy of this Contract within thirty calendar days following the date of its execution to the Ministry of Agrarian, Territorial and Urban Development.
The (PROMOVENTE) undertakes to submit this Contract within thirty calendar days following the date of its execution before the Unitary Agrarian Court or District Judge in civil matters, whichever is competent, as the case may be, in order to validate it and grant it the character of res judicata.
As can be seen, Article 75 is an effect, because the cause is Article 105, therefore, if the purpose of what is stated in the main article, the basis of the mandate, continent of the Secondary Law, derived from the constitutional mandate, is not achieved, we are faced with a legal aberration, a legal nonsense and contradiction that goes against the essence of the norm, prevents it from being complied with, going much further, affecting and attacking an entire strategic sector of the Mexican State, pillar of the economy, guarantor of the primordial human rights because, to conclude soon, without energy the State would be destined to chaos.
Therefore, the secondary law in Article 105 of the LH, nor the current LSH, do not establish limits or times, since the same dynamics and the nature of the sector, its related parties and interested parties set the guidelines, since by logic, legality and finally for safety and ethics, no one enters a property without contracting, since it would be a crime, for in addition the actions or omissions, as well as the forms, are monitored, supervised and inspected by the competent authority, they have powers to do so, in addition to responsibility.
As mentioned above, the use and occupation of land is part of a whole project, of a whole process; land cannot be occupied without contracts, much less without payment of considerations, since Articles 85 and 114 of the previous Law, as well as the current one, provide for sanctions against the disregard of such orders, which are substantial and extreme in some cases.
Section 105 of the LH and 137 of the LSH, without substantive changes, expressly state:
Article 137.- The agreement reached at any time between the parties must be presented by the assignee, contractor or pipeline transportation licensee before the competent District Judge in civil matters or Unitary Agrarian Court, so that it may be validated, giving it the character of res judicata.
For the above, the Agrarian Unitary Judge or Tribunal must proceed to:
Verify whether the formalities required by this Law and, as the case may be, by the Agrarian Law and other applicable provisions have been complied with, and
Order the publication of an extract of the agreement reached, at the expense of the Assignee, Contractor or Permit Holder of Transportation by pipeline, in a newspaper of local circulation and, if applicable, in the most visible places of the respective ejido.
The District Judge or Unitary Agrarian Court must issue its decision, which has the character of a judgment, within fifteen days following the first publication referred to in Section II above, provided that it is not aware of the existence of a pending lawsuit involving the land, property or rights in question.
Only an amparo proceeding may be filed against the resolution issued.
As can be seen, the agreement can be presented at any time, since strategic activities should not be interrupted or stopped for any reason, except for security reasons; in addition, as mentioned above, there are penalties for non-compliance, as in any other procedure, process or authorization, but there are also programs, reports and systems to inform, monitor and control, even as can happen with any provision, whether permissive or prohibitive. It could be disregarded, as would be the case of building without a permit, stealing, driving without a license, hunting endangered animals, among thousands of assumptions, but therefore there are consequences for non-compliance, including sanctions, which may consist of: fines, infractions, penalties, disqualifications, being in this case economic and can reach up to the revocation of permits or termination of contracts. This is how the law works.
But what cannot be is that a norm of lower rank attempts or makes impossible the teleology of a superior norm, since the purpose of the norm in this case is to validate and elevate the act to the category of res judicata, so the judge must always validate, as long as the forms and bases are complied with; therefore, the law empowers him for such purpose by means of two very precise acts of authority: 1) to verify compliance; and 2) to publish for the protection of third parties, registering such act before the corresponding organ in charge of giving publicity, such as the Public Registry of Property, the National Agrarian Registry or the Federal Public Registry of Property, including the time of 15 days to issue the sentence. The aforementioned is very delicate, because in addition to the State, it is also an attempt against society and the rights of third parties are seriously violated.
Finally, the article foresees and indicates which is the only cause for which it cannot be validated, understanding that the act is conditioned to the fulfillment of the cause, but it would never prevent the purpose of the validation, since being a voluntary jurisdiction, there is no litigation, there is no lawsuit, the Non bis in idem principle does not apply, and it can occur as many times as necessary until the purpose is achieved. In order to emphasize, the purpose of the rule is that it is validated, that it is complied with, not that it is not complied with, nor that it is invalidated; therefore, it only considers the following assumption: «provided that it is not aware of the existence of a pending lawsuit involving the land, property or rights in question».
For all of the above, it is in this transitory period when this phenomenon should be observed and remedied, either as we pointed out with its elimination, or with an adequate wording that considers the existing possibilities in reality, so that a contract after being signed can be presented after the 30 days before the judicial authority for its validation. Many of them are quite logical and simple, but unfortunately they were not considered, leaving to arbitrariness the application of the provision and finally, almost as a matter of course, the Judiciary, without going into depth, dismisses it as soon as it realizes that it is outside the 30 days.
This generally happens without assessing the causes, which may be multiple, but can always be remedied, because it is a voluntary compliance procedure, subject to verification, like the many that exist in the legislation and in different matters. For example, it can be a lack of form, from a document, the power of attorney, an identification, doubts or disagreements in the formats, for which many times they reject, without warning; it can also result from a new presentation of the application, as a consequence of a rejection, for any lack in the bases, which can be corrected, but when it is presented again, by logic the famous 30 days will have passed; In the worst case, it could be simply because the regulated party missed the deadline for any circumstance; this reason cannot and should not be an impediment to validate and even less to comply with the Law.
In any case, such action or omission is deserving of a sanction, but for nothing in the world, a reason for not complying with the norm, to subtract the effectiveness and nullify the essence of the validation process, which is the certainty, legality, protection and above all the control of the strategic sector. It is totally disconcerting that something like this should happen.
The foregoing paragraphs require reflection and analysis, in order to find a solution to the impeditive provision, without entering into issues of antinomy, normative subordination, reservation of law, supremacy and hierarchy, which have been discussed by the highest authority, ending in judicial controversies.
The point is that the provision that concerns us generates a state of illegality, overpricing, unnecessary expenses, complications in logistics, payment of fees, consumables, and even opens a window to extortion and corruption, since the obligor remains in the hands of the owner of the land or the authority, since it has no legal way to comply with the law, but must also comply with the purpose and obligations of its contract, permit or title of assignment. It is a vicious circle.
We are on time to build a better hydrocarbon sector, starting from the base: regulations. Let's put in the caffeine!
Article originally published in: https://energy21.com.mx/una-norma-ineficaz-es-como-cafe-sin-cafeina/
