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Mexico

Published on Friday 23rd August 2019

    • Mexico

      Mexico, a member of the WTO, has mainly developed its trade and investment regime through the negotiation of bilateral investment agreements. However, Mexico strongly believes that a multilateral trading system is the main instrument for the liberalisation of world trade. 

    • Mexico

      Mexico is not currently a party to the WTO’s ITA and there is no strong evidence suggesting that it is seeking to join. This is a particular situation, since Mexico is the only non-ITA member in the top 30 ITA exporters (ranking within the top 10 in recent years).

      Notwithstanding the foregoing, since Mexico is a WTO member, it exporters benefit from the most favoured nation nature of the agreement.

      On the import side, Mexico has eliminated duties on a wide variety of imports, providing a competitive price advantage to Mexico exporters and producers.

    • Mexico

      Mexico is not currently a participant or an observer of the WTO’s GPA and there is no evidence suggesting that it is seeking to adhere.

    • Mexico

      Mexico accepted the Agreement on 26 July 2016. Historically, Mexico has been very respectful of its international trade commitments, so we would expect a complete implementation on the substantive commitments of the TFA, specially for purposes of expediting the movement, release and clearance of goods including goods in transit; effective cooperation between customs and other authorities involved in this process and; technical assistance. We also expect a reduction in trade costs as a result of the implementation of such commitments, and consequently a boost in trade.

      Ideally, for Mexico it would also represent a reduction in the administrative constraints, transparency of laws, rules and procedures, as well as fairness in border agency decisions, which represent a significant area of opportunity for this country.

    • Mexico

      The duty tariffs applied by Mexico are contained in the General Import and Export Duty Act (LIGIE), which is based on the Harmonised Commodity Description and Coding System (HS) and has been amended more than 15 times. These tariffs contain more than 12,000 eight-digit headings.

      More than 99 per cent of all the tariff headings applied by Mexico in its tariff are ad valorem; the rest of the tariffs are specific or compound.

      There was a unilateral tariff reduction programme of five years ending in 2013, significantly reducing duties on most of the categories.

      The duty rates range from zero per cent to 254 per cent, and the highest average duty rates are imposed on confectionery and sugar, followed by animals and animal products, coffee, tea, clothing, fish and fish products.

      In general, the customs system has a very significant influence from its main trading partner, the US, and, of course, the WTO; however, many of its main features were originally developed by Mexico, including different regimes to import goods on temporary basis for production of export finished goods.

    • Mexico

      Mexico publishes in the Federal Official Gazette, a list of goods subject to previous import permits. Also, these permits may apply to certain goods listed under particular trade agreements executed by Mexico.

      The Mexican Foreign Trade Law and its Regulation, which have been amended from time to time to be in compliance with WTO principles and agreements, governs the application of import restrictions and prohibitions. The President is the competent authority to determine the non-tariff measures required to restrict or regulate the export, import or transit of goods in Mexico. Usually these resolutions are sent for prior revision to the Foreign Trade Commission in Mexico, and subsequently issued by the Ministry of Economy or the relevant Secretariat and published in the Federal Official Gazette.

      Justified reasons for imposing this type of measures (which are WTO compliant) consist of: (i) imbalances in the balance of payments; (ii) maintain control on used goods or wastes; (iii) answer to restrictions on Mexican exports; (iv) provisions of free trade agreements (FTAs); (v) national security, public health or environmental reasons and; (vi) avoiding the inflow of goods subject to unfair trade practices.

      The non-tariff restrictions may be imposed in the form of permits, countervailing duties, limited quotas, among others.

      Some groups of products subject to previous import permits consist of used tyres and clothing, petroleum products, vehicles, diamonds and some specialised equipment.

      Any individual or entity intending to import goods into Mexico must obtain a National Importers record, and a tax identification number from the internal revenue authorities of Mexico.

      Finally, with the objective of modernising the customs procedures in Mexico, the Mexican government has launched a new tool known as the Foreign Trade Single Counter, which will allow companies to comply with all their foreign trade obligations by transferring electronic information to a single website. The main purpose of the Foreign Trade Sole Counter is to simplify, standardise and automate all customs procedures in one.

      As a result thereof, the flow of information between private entities and the government will be significantly more expeditious and simple, and the duration of the customs formalities will be considerably reduced.

      In addition to simplifying all the import and export submissions, this Foreign Trade Single Counter will also serve to comply with non-tariff restrictions, carry out notifications related to the submissions of the company and to carry out electronic payment of duties and taxes.

    • Mexico

      The export requirements in Mexico may be summarised as follows: all exporters shall file export pedimentos or manifests by using an in-house or customs broker. The exporter of record shall attach to its declaration the commercial invoice of goods and evidence of compliance with non-tariff restrictions on exports (which are significantly few than import requirements).

      Certain listed products shall also be recorded before the Specific Exporters Registry (alcoholic beverages, tobacco, cigars among others). Most of these products are also subject to the special tax on production and services.

      An export prior permit is only required to specific products such as petroleum goods and rough diamonds.

      Fewer than 30 tariff classifications are subject to the payment of duties.

      Many foreign investors benefit from the IMMEX programme, the purpose of which is to allow the temporary importation of raw materials and assets into Mexico, to repair or transform goods that are subsequently exported. The importation of raw materials and assets is exempted from the payment of VAT, and the raw materials are exempted from the payment of duties. This mechanism allows foreign investors to manufacture their products in Mexico by benefiting from the excellent and low-cost labour and the expanded network of FTAs executed by Mexico.

      Dual use items may be subject to a restriction exemption, provided that specific conditions and non-tariff restrictions are met to assure the improper use of said goods. The restrictions are different depending on the sector.

    • Mexico

      Mexico has a very acceptable compliance record with WTO dispute settlement reports.

      An isolated example of a claim against Mexico on its WTO settlement reports was where members noted the persistence of some non-tariff barriers to trade and encouraged Mexico to remove reference prices and simplify its system of SPS measures. Mexico replied that these references were only applied to used cars and were compatible with WTO rules.

    • Mexico

      The International Trade Practices Unit of the Ministry of Economy (UPCI), is the administrative unit responsible for carrying out the investigation procedure against unfair trade practices in their mode of price discrimination or dumping. This procedure is regulated by the Agreement on Implementation of srticle VI of the General Agreement on Tariffs and Trade 1994 (ADA or AAD), the Foreign Trade Law (FTL) and its Regulations (RCFT).

      The UPCI determines in a single investigating both dumping and subsidy determinations and material injury determinations.

      Safeguards procedure

      • Safeguard measures temporarily regulate or restrict imports of goods identical or alike to or directly competitive with products of the domestic industry and are intended to prevent or remedy serious injury and facilitate adjustment by the domestic producers. Safeguard measures may consist of specific or ad valorem duties, licences or maximum quotas.
      • The safeguard measures shall be determined by the UPCI, within a period of 260 days from the day following the publication of the initiating resolution in the DOfficial Federal Gazette, subject to the provisions of the international treaties and conventions to which Mexico is a party.
      • The Federal Executive may determine provisional safeguard measures within a period of 20 days from the day following the publication of the initiation of an investigation in the Official Federal Gazette, whenever: (i) critical circumstances have arisen and any delay would result in damage which it would be difficult to repair; and (ii) there is evidence that increased imports have caused or are threatening to cause serious injury. The duration of the provisional measures shall not exceed six months.
      • To determine whether a safeguard measure is appropriate, the Ministry shall investigate pursuant to the administrative procedures described in the FT its regulations and, in the international treaties and conventions to which Mexico is a signatory.
      • In order to determine severe injury or threat of severe injury, the Ministry shall evaluate the impact of the imports under investigation on the total domestic production of identical, like or directly competitive goods or on those domestic producers whose collective output constitutes a major proportion of the total domestic production of such goods. As a result of the 2014 amendments, there should be objective evidence on the relation between the increase on the imports of the good subject matter to investigation and the severe injury or threat of severe injury.
      • The Ministry shall consult with the representatives of the productive sectors concerning the application of the compensation measures that must be adopted under the international treaties and conventions to which Mexico is a party.
      • The safeguard measures shall be applied only for such period of time as may be necessary to prevent or remedy serious injury and to facilitate adjustment.

      Dumping and countervailing investigations

      • Petitions may be filed by either entities, or individuals who are producers of merchandise identical or similar to that which is imported under conditions of unfair competition.
      • With publication of the initiation notices, interested parties are sent copies of the petition.
      • Notifications required under the FTL may be sent to an interested party or his or her legal representative through personal service to his or her domicile, by certified mail with return receipt, or by any other direct means.
      • Access to confidential information is only granted to accredited legal representatives of the interested parties and to any persons who, under international treaties, are accorded such access.
      • Interested parties include the petitioning producers, importers and exporters of the merchandise under investigation, as well as foreign individuals who have a direct interest in the investigation or are defined as interested parties under international agreements.
      • All information and documents must be submitted in Spanish.
      • A preliminary determination must be issued within 90 days from the initiation of an investigation.
      • The Secretary has three choices: (i) set a preliminary compensatory duty after a minimum of 45 days following publication of the notice in the Official Gazette, based on the results of the preliminary determination; (ii) refrain from imposing duties but continue the investigation; or (iii) terminate the investigation on the grounds of insufficient evidence of dumping or subsidisation, or of injury or threat of injury, or a causal relationship between them.
      • When the investigation has been concluded by the Secretary, the draft final determination is submitted to Foreign Trade Commission (COCEX) for its opinion. This resolution must be issued within 210 days of the initiation of the investigation; the Secretary may (i) impose a final compensatory duty, (ii) revoke the provisional duty earlier imposed, or (iii) declare the investigation concluded without the imposition of a countervailing duty.
      • Compensatory duties may be reviewed and revised annually at the request of any party or at any time at the Secretary’s discretion. This review may take place regardless of whether the determination is subject to alternative dispute resolution or to an administrative or judicial proceeding.
      • Interested parties may ask Economía to convene a conciliation meeting, at which proposals may be made to resolve the case and terminate the investigation.
      • An interested party that wishes to challenge one of Ministry of Economy determinations (or the first collection of a compensatory duty) has different options:
        • If it and other interested parties concur, or if the party is not from a NAFTA country, the challenge may be pursued administratively within Economía and then before the Federal Tax Court. The determination of TFJFA may subsequently be subject to review under Mexico’s amparo jurisdiction. Alternatively, it may be possible to challenge Economía’s final determination or assessment of duties directly in amparo, bypassing TFJFA. Alternatively, if the party is a national of the United States or Canada, he or she may seek review under Chapter 19 of NAFTA.
    • Mexico

      In recent years, the main agricultural subsidies maintained by Mexico are:

      • Direct Payments or Support: PROCAMPO and Alianza para el Campo and;
      • Payments based on volume produced: PACE (Programa de Apoyo a la Comercialización Ejidal) and; ASERCA Apoyos y Servicios a la Comercialización Agropecuaria).

      Contrary to the general belief in Mexico, the subsidies granted by its main commercial partners are similar to those granted by Mexico in this case, the United States and Canada. The levels of agricultural subsidies are just inferior to countries such as Japan and the European Union.

      As a condition to phase out its agricultural subsidies, Mexico has requested to developed countries to reduce theirs to avoid market distortions. A clear claim on this sense took place in the Fifth Ministerial Meeting of WTO that took place in Cancún, Quintana Roo, in September 2003. In this meeting, Brazil also supported Mexico’s claim.

    • Mexico

      Mexico has been involved in 23 cases as claimant and 14 as respondent. Also, it has been involved in 63 cases as third party.

      We do not expect any respective legal action anytime soon; however, there is still an important case in Mexico. This hot topic is the settlement dispute requested to the WTO by Mexico, after bilateral discussions failed to reach a deal last year. This dispute settlement is recorded under number DS451 and related to measures regarding to the production and exportation of apparel and textile products by China.

      Mexico has claimed that China maintains different measures (tax exemptions, duty and VAT reduction on the purchase of equipment contingent to export, cash payments among others) to support producers and exporters of apparel and textile products and suppliers in the cotton and chemical fibres industries.

      Mexico is supporting this case on inconsistencies to the Agreement on Agriculture, SCM agreement, China’s Accession Protocol and different articles of GATT.

      This case is at the consultation stage.

    • Mexico

      NAFTA (US and Canada); Costa Rica; Colombia; Bolivia (was recently terminated); Nicaragua; Chile; European Union; Israel; North Triangle (Salvador, Guatemala Honduras); European Association (Norway, Iceland, Switzerland, Liechtenstein); Uruguay; Japan; Peru.

      Recently the Mexican government has expressed that it feels comfortable with the number of trade agreements signed by Mexico. Consequently, the government has decided to suspend negotiations with other countries such as Argentina, Panama, Korea, New Zealand, Singapore and Australia, to focus instead on the development of those agreements already signed.

      Still, since 8 October 2012, Mexico is formally participating in the ambitious multilateral negotiation of the Trans-Pacific Partnership Agreement (TPP), whose main objectives are to improve the progressive liberalisation of the trade of goods and services, accelerate supply chains, reduce cost of doing business and reinforce regulatory cooperation. The main advantage of the TPP for Mexico would be access to the Asian market.

      Also, in 2011 Mexico reached an agreement with Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua to integrate into one instrument the three agreements entered between the parties, to facilitate the commercial integration of the region.

    • Mexico

      The UK and Mexico have expressed their intent and have even began informal conversations to negotiate a bilateral trade agreement with the UK if Brexit occurs. It has been discussed that the terms of said agreement would be exactly the same as the FTA with the European Union. It is, however, difficult to predict the real impact until we learn whether the UK will be able to sign FTAs with the US and the European Union.

    • Mexico

      The main conflict relates to the resolution of disputes mechanisms. Some of the main bilateral or regional trade agreements of which Mexico is a member, contain a mechanism of dispute resolution that may be in conflict with the mechanisms established by WTO law. We can get to a point where contradictory resolutions are issued, generating uncertainty on the parties. In my opinion, a provision of forum exclusion should be included in all the bilateral/regional agreements to avoid contradictions and weakening of the multilateral system.

    • Mexico

      Indeed, Mexico is part of the North America Free Trade Agreement (NAFTA) along with Canada and the US (USMCA will substitute NAFTA is it is ratified by the three countries). It also has regional agreements with the Central America region.

      Since 8 October 2012, Mexico is formally participating in the ambitious multilateral negotiation of the Trans-Pacific Partnership Agreement (TPP), which main objectives are to improve the progressive liberalisation of the trade of goods and services, accelerate the supply chains, reduce cost of doing business and reinforce the regulatory cooperation. The main advantage of the TPP for Mexico, would be the access to the Asian Market.

    • Mexico

      Mexico has a very good competitive perspective as the second-largest economy in Latin America and an established manufacturing centre. Mexico is already the world’s biggest producer of flat-screen televisions and a major car producer with a fast-growing aerospace industry. The expectation that Mexico would become even more attractive as an investment destination as a result of the CPTPP is now reduced, since the platform for exports will not improve as a result of the implementation of the aforesaid Agreement; however, the USMCA could boost Mexico's potential. On the other hand, the automotive parts industry had expressed concerns in relation to a possible change in the current growing trend it has been enjoying in Mexico as a result of the enactment of the CPTPP, but this is no longer as a result of the new status of the CPTPP. On different occasions, this industry expressed that different analysis made by this industry showed that Mexico had to be careful and continue to be more competitive every year to avoid a negative impact in the near future.

      Another downside of the CPTPP was that multinational companies with global supply chains were expected to benefit more than medium and small domestic companies, unless the latter significantly increased their competitiveness, which implied new investments for these companies and production of more value-added goods to be able to compete and benefit from the CPTPP. 

      Mexico considers as positive the potential incorporation of the US to the CPTTP, provided that it adheres to the terms and conditions already negotiated by the parties instead of trying to open a new round of negotiations.

    • Mexico

      While Mexico does not maintain a similar system with respect to third countries, to promote economic growth in the developing world by providing preferential duty-free entry to certain products, it has received very limited benefits from the GSP maintained by the EU and the US. Just as a reference, it is important to mention that Mexico is not among the top 20 countries receiving benefits from the GSP.

    • Mexico

      There is some degree of uncertainty as from time to time the United States government has decided to implement measures restricting trade between the two countries without prior notice.

      Still, as difficult as the trade relation has been in recent years between Mexico and the United States, significant progress has been made, as a new FTA for the region was signed, an agreement on immigration was reached and it seems to be the most stable moment for the trade relation between Mexico and the United States during the Trump administration.

      Although the USMCA still must be signed, ratified and passed by the three countries before it can go into effect on 1 January 2020, as expected, its text has produced clarity and stability.

      The is one specific sector that will have significant impact as a result of the enactment of the USMCA, the automotive and auto parts industry. Following we address the main modifications for this industry.

      Other than the fact that these three countries continue to be part of a trilateral trade agreement, and that USMCA continues to use the system of specific rules of origin for the automotive and the auto parts industry, the automotive and auto parts trade provisions have been significantly impacted as follows. 

      Regional value content (RVC)

      • RVC for vehicles increases from 62.5 per cent to 75 per cent.
      • RVC thresholds for three categories of automotive parts:

      a.         Core parts (engine, transmission, body and chassis, axle, suspension, steering, advanced batteries): 75 per cent RVC. There will be a transition period of three to five years. Must be originating for the vehicle to be originating.

      b.         Principal parts (tyres, glass, pumps and compressors, A/C, bearings and bearing housings, electric motors used as primary source of propulsion, electric motors for electrical variable transmission, electromagnets, starter motors and generators, bumpers, safety belts, brakes, road wheels, radiators, mufflers, clutches, airbags, seats and parts of seats): 65 per cent RVC.

      c.         Complementary parts: (pipes, catalytic converters, valves, taps and cocks, electric motors and universal AC/DC motors not exceeding 37.5W, DC motors and generators not exceeding 750W, other batteries, distributors and ignition coils, electrical lighting, windshield wipers/defrosters, sound recording/reproducing apparatus, switches, insulating wiring sets, headlamps, electronic instruments and measurement equipment): 65 per cent RVC.

      • New RVC for North American steel and aluminum at 70 per cent.

       Labour Value Content Requirement (LVC)

      • New LVC.
      • 40 per cent of passenger vehicle must be made by hourly wage (production/trades/temps) above US$16/hour (at least 25 per cent from materials and manufacturing content).
      • 45 per cent of pickup trucks and cargo vehicles must be made by hourly wage (production/trades/temps) above US$16/hour (at least 30 per cent from materials and manufacturing content).
      • Can average within one country across class, model or plant.
      • Up to 5 per cent credit toward LVC for assembling the vehicle in high-wage region in North America.
      • Up to 10 per cent credit toward the LVC from R&D and IT work done in the region. 

       Section 232 of the Trade Expansion Act of 1962

      Mexico and Canada also negotiated side agreements (letters), which mostly exempt light vehicle and auto parts exports to the United States from potential national security tariffs under section 232 of the Trade Expansion Act of 1962.

      Consequently, each of these countries can send up to 2.6 million passenger vehicles per year, as well as unlimited number of light trucks. US$32.4B (for Canada) and $108B (for Mexico) in parts will be exempt from any US imposed section 232 tariff on imported vehicles or parts.

      Mexico, additionally negotiated provisions exempting non-USMCA automotive exports from potential increases in the (MFN) rates of the United States. As a result thereof, 1.6 million units (vehicles), which are non-USMCA originating under the new scheme, will be grandfathered in at the current 2.5 per cent tariff rate for passenger cars and automotive parts and 25 per cent tariff rate for pickup trucks and cargo vehicles. 

      Currently, based on calculations by the Mexican government, approximately 780,000 vehicles (32 per cent of Mexico’s current vehicle output, which is below the 1.6 million cap) are not originating under the new USMCA Rules of Origin.

      Expectation

      As a result of the new scheme of automotive trade in the North America region, we would expect automakers and suppliers to move more work to this region. Additionally, for some sectors in the industry such as light vehicles and automotive parts, we foresee a rise in productions costs, which would eventually result in an increase in consumer prices.

    • Mexico

      The position of Mexico in connection to this situation, is that there is no justification under the national security argument for the US to impose these trade measures, thus, Mexico will start a dispute settlement process at the WTO over said US tariffs on steel and aluminum.

      Additionally, Mexico issued a retaliatory Decree with the following measures: 

      • Article 1 of the Decree, suspends the preferential tariff treatment of NAFTA, exclusively for US origin goods, and for the specific goods listed in such article (71 tariff codes).
      • Article 2 of the Decree, which lists exactly the same goods as article 1 (71 tariff codes), provides a special increased tariff for said goods, only if they are US originating.

      It means that if companies import any of the goods listed therein (article 1) on permanent basis and said goods are US originating, they cannot longer apply the NAFTA preferential duty rates exclusively for such goods.

      Companies also prevented by this Decree to apply the preferential duty rates set forth by the Mexican Promotion Sectorial Programs (PROSEC), for these specific goods. PROSEC is an additional option to apply a preferential duty rate (usually ranging from zero per cent to 5 per cent) for IMMEX companies holding said authorisation.

      The “Retaliation Decree”, expressly states that the aforesaid provisions are exclusively applicable  to imports on permanent basis, in other words, companies may continue importing these goods under the IMMEX program on temporary basis, and avoid any payment of the new tariffs, provided that said goods are exported/returned abroad. This exception may sound contradictory, however, Mexico deliberately decided to exempt these operations to avoid affecting the competitiveness of the export sector in this country.

      1. Article 3 of the Decree, provides a different list of goods (steel and aluminum variations)  which tariff is increased, however, this increase is not exclusively applicable to US goods, instead, this is a general increase to the Mexican Tariff applicable in principle to all countries. The main reason for this measure by the Mexican government is the expectation that world suppliers for steel and aluminum, which used to export to the US markets and will be affected by the US tariff measures, may try to ship part of such production to Mexico, generating a significant affect on the country's suppliers.

      Notwithstanding the foregoing, if the goods are originating from a country having a free trade agreement with Mexico, said preferential treatment can be applied by IMMEX companies (including NAFTA as most of these goods are not part of the retaliation goods); however, the company must be cautious with the analysis as some of the goods contained in the list of article 3 are also listed for purposes of articles 1 and 2 analysed above (ie, 7208.10.02), in which case, if the origin of the goods is the US, the NAFTA preferential treatment cannot be applied as it has been cancelled for the 71 tariff codes covered by article 1 and article 2 of the retaliation decree.

      The preferential duty rates set forth by PROSEC can also be applied to the import of goods covered by this list, if convenient for companies, as no provisions in this Decree exclude such benefit.

      Finally, the IMMEX scheme is also not affected in this case.

    • Mexico

      The system was significantly improved as a result of WTO regulation.

      Trademarks

      Trademarks in Mexico must be registered before the Mexican Intellectual Property Institute to be protected against third parties. A registered trademark in Mexico has a term of 10 years, which may be renewed an unlimited number of times for succeeding 10-year terms. Mexico is a signatory to the Paris Convention for the Protection of Industrial Property, which provides that a trademark application filed with a member country within six months of filing an application with another member country will have the priority date of the first application.

      On 25 April 2012, the Mexican Senate approved the accession to the Madrid Protocol.

      Geographical indications

      Mexico has been a party to the Lisbon Agreement since 25 September 1966. The definition of geographical indication in Mexican Industrial Property Law is based on the definition established in the Lisbon Agreement.

      The international protection of geographical indications has also been obtained in trade agreements such as the Agreement on the Trade-Related Aspects of Intellectual Property Rights of the World Trade Organization, which Mexico entered into force in Mexico on 1 January 2000. IMPI shall declare the protection of an appellation of origin ex officio or at the request of a party demonstrating legal interest.

      Once an application has been filed and complies with all requirements established by Law, the IMPI publishes an extract of the application in the Official Federation Gazette and a period of two months is granted, starting from the publication date, for any third party with legal interest to make observations or raise objections.

      The parties shall submit their means of evidence before the IMPI and the IMPI is bound to make its resolution. If the resolution in question grants protection the IMPI publishes it in the Official Federation Gazette. The validity of the declaration of protection is determined by the continuing existence of the conditions that gave rise to it. The terms of the declaration of protection for an appellation of origin may be amended at any time, ex officio or upon request of an interested party.

    • Mexico

      There are administrative and judicial authorities with all legal capacity to effectively enforce property rights.

      Through the initiation of administrative procedures, the competent administrative authorities may impose all kind of sanctions and preventive measures such as fines, seizure and closure of business facilities, among others. Entities or individuals may set off the initiation of these procedures.

      Also, the federal courts are involved in resolving claims on administrative procedures involving property rights or to solve disputes in this area of law.

    • Mexico

      It does not seem as if Mexico is currently planning on joining the Asian Infrastructure Investment Bank proposed by China or a similar initiative. The main reason is the second component requiring countries to lend. Mexico may not be in the best position to lend at this point. 

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