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Mexico

Last Verified on Friday 1st May 2020

    Legislation

    • Mexico

      The Code of Commerce, in its Fifth Book, Title Fourth, governs the enforcement of international commercial arbitration. Specifically, article 1415 of the Code of Commerce states that Title Fourth and the international treaties to which Mexico is a party will apply to national and international commercial arbitration whenever the seat of arbitration is Mexico.

      The provisions of the Code of Commerce governing the enforcement of commercial arbitration awards will also apply despite Mexico not being the seat of arbitration.

      Last verified on Friday 1st May 2020

    • Mexico

      Because Mexico entered into the North American Free Trade Agreement (NAFTA) with the United States and Canada and as part of Mexico’s economic modernisation, our country made legislative changes in order to allow the incorporation of the international trade to Mexico. As a consequence, Mexico adopted the UNCITRAL Model Arbitration Law in 22 July 1993 by amending the Code of Commerce. The Code was amendment include in Book Fifth, Title Fourth, the UNCITRAL Model Arbitration Law.

      Although Mexico mainly adopted the UNCITRAL Model Arbitration Law, there are some differences. The UNCITRAL Model Arbitration Law applies to international commercial arbitration (article 1) while the Code of Commerce is applicable to both international and national arbitration (article 1415). If the parties failed to agree on the number of arbitrators, the UNCITRAL Model Arbitration Law foresees three arbitrators (article 10), in opposition to one arbitrator foreseen in the Code of Commerce (1426). The UNCITRAL Model Arbitration Law contains dispositions regarding the conditions for granting interim measures, applications for preliminary orders and conditions for granting preliminary orders, the specific regime for preliminary orders, modification, suspension, termination, disclosure and cost and damages of interim measures (articles 17, 17A, 17B, 17C, 17D, 17E, 17F, 17G). In contrast to the UNCITRAL Model Arbitration Law, the Code of Commerce contains dispositions regarding arbitration costs (Chapter VII, articles 1452-1456) and the procedures to be followed by the national courts when intervening in arbitration matters (Chapter X).

      Last verified on Friday 1st May 2020

  • Conventions

    • Mexico

      Mexico is a party to both conventions. On 14 April 1971, Mexico ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the 1958 New York Convention). On 15 February 1978, Mexico ratified the Inter-American Convention of International Commercial Arbitration (the 1975 Panama Convention).

      Likewise, Mexico is a party to other treaties governing international commercial arbitration agreements, such as the Inter-American Convention on Extraterritorial Validity of Foreign Judgements and Arbitral Awards (the 1979 Montevideo Convention), which Mexico ratified on 11 February 1987. Mexico also entered into a bilateral treaty: the Convention between Mexico and Spain on Recognition and Enforcement of Court Judgments and Arbitral Awards in Civil and Commercial Matters, which was effective in 1992.

      Last verified on Friday 1st May 2020

    • Mexico

      Yes, on 11 January 2018 Mexico signed the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the Washington Convention or ICSID Convention), which became effective on 26 August 2018. Mexico has not taken any steps to renounce or withdraw from it.

      Last verified on Friday 1st May 2020

    • Mexico

      Yes, as stated in the previous questions, Mexico is a party to the New York Convention, the Panama Convention, the Montevideo Convention, the Convention between Mexico and Spain on Recognition and Enforcement of Court Judgments and Arbitral Awards in Civil and Commercial Matters and the Washington Convention.

      Last verified on Friday 1st May 2020

  • Commercial arbitral agreements and arbitrability

    • Mexico

      In Mexico there is no need for a post-dispute ‘compromiso’ or arbitration clause. Therefore, a pre-dispute arbitration clause is completely enforceable in Mexico.

      Last verified on Friday 1st May 2020

    • Mexico

      An enforceable arbitral agreement shall meet several requirements. Under Mexican law, which follows the UNICTRAL Model Arbitration Law, parties can submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. The arbitral agreement can adopt the form of an arbitration clause contained in a contract or independent agreement (article 1416 of the Code of Commerce). The arbitral agreement shall be executed by parties whose consent is absent of error, fraud or was not given under duress. The arbitral agreement shall have a legal and lawful purpose, including that the subject matter shall be subject to arbitration. The parties shall have legal capacity to execute the arbitral agreement. The arbitral agreement shall have the form required by law.

      Pursuant to article 1423 of the Code of Commerce, the arbitration agreement shall be in writing and shall be contained in a document signed by the parties, or in an exchange of letters, telex, telegrams and other means of communications in which the agreement is included The arbitration agreement can also consist of an exchange of statement of claim and defence in which one party alleges the existence of an agreement and the other party does not deny it. Furthermore, an arbitration agreement is enforceable whenever there is a reference in a contract to other documents that contain an arbitral clause in writing, provided that the reference is clear as to make that clause part of the contract.

      Last verified on Friday 1st May 2020

    • Mexico

      Yes, in Mexico and in the context of an international business transactions, there are some subject matters excluded from arbitration. National courts have exclusive jurisdiction in matters related (i) to land and water located in national territory, including subsoil, airspace, territorial sea, continental shelf, (ii) resources of the exclusive economic zone or related to sovereign rights of said zone, (iii) acts of authority or acts related to the internal regime of the State and of local and federal entities.

      Likewise, public works and public purchases executed between public entities and individuals can be subject to arbitration. However, the Law of Public Works and Related Services (article 98) and Law of Procurement, Leasing and Services for the Public Sector (article 80), states that the disputes arising out of administrative rescission and early termination are excluded from arbitration.

      The Public-Private Partnerships Law (article 139) allows arbitration but establishes that revocation of concessions, authorisations and acts of authorities are not subject to arbitration.

      The Hydrocarbons Law foresees arbitration for contracts for oil exploration and extraction but excludes administrative rescission from arbitration (article 21).

      Regarding industrial property matters, not all disputes may be subject to arbitration, but only commercial and civil disputes derived from the application of the Industrial Property Law that just affect individual interests may be subject to arbitration (article 227). In connection to telecommunications matters, pursuant to the Mexican Telecommunications and Broadcasting Law, disputes between the concessionaires and the Federation, states and municipalities are of exclusive jurisdiction for specialised courts (article 5); however, disputes between concessionaires and licensed holders can be arbitrable. Anti-trust matters are also not arbitrable under Mexican law.

      Last verified on Friday 1st May 2020

    • Mexico

      According to the principle of legality, the authorities can only do whatever the law allows. Hence, the state and its entities can only enter into an arbitration agreement whenever the law governing such entity foresees the possibility to agree arbitration. For example, Pemex can execute arbitration agreements based on article 115 of the Pemex Law. In additon, the Federal Commission of Electricity Law allows it to enter into an arbitration agreement pursuant to article 118.

      Last verified on Friday 1st May 2020

    • Mexico

      If parties fail to agree on the nature of the arbitration, article 1445 of the Code of Commerce establishes that the arbitral tribunal will determine the law applicable to the substance of the dispute.

      Last verified on Friday 1st May 2020

    • Mexico

      The Code of Commerce does not limit party autonomy. Article 1426 allows parties to freely determine the number of arbitrators. Article 1427 (II) establishes that the parties are free to agree the procedure for selecting arbitrators. Article 1417 expressly recognises the power of the parties to freely decide the arbitral institution of their choice. Article 1436 foresees that parties can freely determine the seat of arbitration.

      Last verified on Friday 1st May 2020

    • Mexico

      The Code of Commerce does not foresee this scenario. For a non-signatory to pursue a claim in international arbitration against a party to the arbitral agreement, the non-signatory need to proof that such party gave its consent to the arbitration agreement.

      Last verified on Friday 1st May 2020

    • Mexico

      The Code of Commerce does not foresee this scenario. However, considering that in order for being bound by an arbitration agreement, it is necessary the consent. A party can be bound if it can be proven that the consent was given even though such party did not sign the arbitration agreement.

      Last verified on Friday 1st May 2020

    • Mexico

      The Code of Commerce does not foresee this scenario. In this case, the party to the arbitral agreement shall prove that the non-signatory gave it consent to the arbitration agreement so it shall be considered as a party and therefore shall request the judge to refer the parties to arbitration based on article 1424 of the Code.

      Last verified on Friday 1st May 2020

    • Mexico

       Labour disputes are non-arbitrable. Consumer disputes are arbitrable and, depending on the parties’ agreement, are governed either by the Federal Consumer Protection Law or the Mexican Commerce Code.

      Last verified on Friday 1st May 2020

    • Mexico

      Mexican law does not provide for class-action arbitration or group arbitration. Class actions are governed by the Federal Code of Civil Procedure, which in article 578 disposes that class actions shall be brought before federal courts.

      Last verified on Friday 1st May 2020

    • Mexico

      The Mexican Commerce Code does not distinguish between institutions with and without physical presence, nor it provides dispositions that govern the arbitral institutions.

      Last verified on Friday 1st May 2020

  • Arbitral institutions and arbitrators

    • Mexico

      No, there is no specific requirement applicable to arbitrators whenever participating in international arbitrations. Moreover, article 1427 of the Mexican Commerce Code disposes that for unless otherwise agreed by the parties, the nationality of a person shall not be an obstacle for acting as arbitrator. Mexican lex arbitri applies equally to both national and international arbitration.

      Last verified on Friday 1st May 2020

    • Mexico

      No, Mexico does not provide immunity from civil lawsuits to arbitrators. Article 1480 of the Mexican Commerce Code, amended in 2011, provides that arbitral tribunal is responsible for damages caused by the provisional measures rendered by the arbitral tribunal.

      The immunity for arbitrators normally derived from the institutional arbitration rules that are applicable due to the agreement of the parties. Most arbitration rules foresee immunity for arbitrators, such as article 41 of the Arbitration Rules of the International Chamber of Commerce.

      Last verified on Friday 1st May 2020

    • Mexico

      Mexican law does not have a specific disposition governing fees of foreign arbitrators, so tax regulation shall apply. In respect to Income Tax, the tax for the fee perceived for services furnished shall be paid if such services were rendered in Mexico. Value-Added Tax will be applicable whenever a service is imported. It all depends on whether it is interpreted that the services of foreign arbitrators were provided in Mexico or if such services are being imported.

      Last verified on Friday 1st May 2020

    • Mexico

      According to the Mexican Commerce Code, arbitrators shall be independent and impartial. Article 1428 establishes that any person that has been approached derived from his or her possible appointment as arbitrator, shall disclose any circumstances likely to give rise to justifiable doubts about his impartiality or independence. Article 1428 states that arbitrators shall disclose any circumstances that may give rise to justifiable doubts, but it does not provide any legal standard governing conflicts of interest and does not have standards applicable to what circumstances have to be disclosed by arbitrators.

      The IBA Guideline of Conflicts of Interest in International Arbitration will only be applicable whenever the parties agree so.  

      Last verified on Friday 1st May 2020

    • Mexico

      Article 1428 of the Mexican Commerce Code establishes that an arbitrator can only be challenged if there are justifiable doubts about his impartiality or independence, or if that person does not possess the qualifications agreed by the parties. Article 1429 of the Mexican Commerce Code allows parties to freely agree on the procedure for challenging an arbitrator. If party failed to agree so, the party challenging an arbitrator shall file, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance rising doubts of arbitrator’s impartiality or independence, a written statement of the reasons for the challenge.

      Therefore, courts shall attend any request to disqualify an arbitrator if such request is made in accordance with the parties’ agreement or the aforementioned dispositions of the Mexican Commerce Code.

      Last verified on Friday 1st May 2020

  • Arbitral proceedings

    • Mexico

      In Mexico there is a good public perception of the reliability of arbitration as a dispute resolution method. Mexico is considered as an “arbitration-friendly” country since the principle of favour arbitrii is respected. In most cases, arbitration does not have an undue influence from the courts.

      Last verified on Friday 1st May 2020

    • Mexico

      No, article 1438 of the Mexican Commerce Code provides that the parties can freely agree on the language or languages to be used in the arbitral proceedings. In the absence of the parties’ agreement, the arbitral tribunal shall determine the corresponding language to be used in the arbitration.

      Last verified on Friday 1st May 2020

    • Mexico

      In Mexico there are no rules restricting foreign lawyers to act in an arbitral proceeding. The common practice is that in arbitrations where the applicable substantive law is the Mexican law, foreign lawyers appear with Mexican lawyers serving as co-counsel.

      However, for acting before Mexican courts, even in procedures assisting in arbitration matters, foreign lawyers shall obtain a professional licence from the Mexican authorities.

      Last verified on Friday 1st May 2020

    • Mexico

      Mexican law does not provide for consolidation of multiple arbitral proceeding into a single proceeding. The consolidation of multiple arbitral proceedings may operate whenever the parties have agreed on it, either by expressly foreseeing it or by agreeing on the application of specific rules of arbitration that has dispositions governing the consolidation of arbitrations; like article 10 of the ICC Rules of Arbitration.

      Last verified on Friday 1st May 2020

    • Mexico

      Mexican law does not contain dispositions governing the production of documents. Nevertheless, it is a common practice in arbitration that merely derives from the agreement of the parties. The parties can expressly agree on the production of documents in the arbitration and the amplitude of such exchange will depend on what the parties have agreed on.

      If there is no agreement regarding the production of documents, the arbitral tribunal may have the authority to order the disclosure of documents base on dispositions of the rules of arbitration applicable according to the agreement of the parties. The authority of the arbitral tribunal is only over individuals and entities that are party to the arbitration but not over third parties.

      Last verified on Friday 1st May 2020

    • Mexico

      The Mexican Commerce Code, as happens with the UNCITRAL Model Arbitration Law, does not impose a duty of confidentiality in arbitration. Such confidentiality obligation depends on the parties’ agreement.

      According to article 1435 of Mexican Commerce Code, parties are free to agree on the procedure to be followed by arbitral tribunal in conducting the proceedings, which include the possibility of the parties to agree the confidentiality of the arbitration. Additionally, most of the arbitration rules foresee a confidentiality obligation. For example, article 5 of the Arbitration Rules National Chamber of Commerce in Mexico City (CANACO) states that unless otherwise agreed, the arbitral proceeding is confidential.

      Last verified on Friday 1st May 2020

    • Mexico

      Mexican law does not foresee third- party funding. Likewise, there are no ethical limitations for counsel that restrict the use of such funding. Actually, there have been cases of third-party funding in arbitration.

      Last verified on Friday 1st May 2020

    • Mexico

      There are no mandatory rules of professional ethics in Mexico that apply to counsel acting in international arbitration. Counsel acting in arbitration that are members of the Mexican Bar Association shall observe the ethical code of such bar. However, Mexican law does not provide mandatary membership to a bar.   

      Last verified on Friday 1st May 2020

    • Mexico

      In Mexico, there are no mandatory rules of on oath or affirmation for witnesses testifying in arbitration. Considering that pursuant to article 1435 of the Mexican Commerce Code, parties are free to agree on the procedure to be followed by arbitral tribunal in conducting the proceedings, that freedom includes agreeing on the requirements for the testimony of a witness, which can be delivered as a written statement or by being cross-examined in a hearing. Despite not being a mandatory rule on these regards, it is a common practice that the arbitral tribunal make witnesses aware of their duty to tell the truth.

      Last verified on Friday 1st May 2020

  • Court support for arbitration

    • Mexico

      There are no legal restrictions in Mexico on interviewing witnesses in anticipation of hearings or giving testimony. It is common practice in Mexico for counsel to assist the witnesses in the preparation of their testimonies.

      Last verified on Friday 1st May 2020

    • Mexico

      Since Mexico adopted the UNCITRAL Model Arbitration Law, our Commercial Code recognises the Kompetenz-Kompetenz’ principle. Article 1432 of the Commercial Code states that the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

      Mexican courts respect such principle and only intervene whenever the arbitral tribunal rules as a preliminary question that it has jurisdiction and a party, pursuant to article 1432 of the Commercial Code, request the court to decide the matter. The ruling of the national court is not subject to an appeal.  

      Last verified on Friday 1st May 2020

    • Mexico

      The principle of the independence and separability of the arbitration clause is embodied in Article 1432 of the Mexican Commercial Code, which states that an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. Therefore, a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

      As a consequence, any party challenging the enforceability of the entire commercial agreement containing an arbitration clause shall pursue said claim before the arbitral tribunal and not before the national courts.

      Last verified on Friday 1st May 2020

    • Mexico

      In Mexico, the arbitral tribunal enjoys broad powers to grant interim relief. Article 1433 of the Mexican Commerce Code provides that otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures. As mentioned in question 2, Mexico did not include all the provisions of the UNCITRAL Model Arbitration Law related to the interim measures. Mexico did not include provisions defining the types of interim measures that an arbitral tribunal may grant. Therefore, arbitral tribunals have complete discretion in granting all types of measures, such as conservatory, preliminary and interim measures. Moreover, judges enjoy the same powers according to articles 1425 and 1478 of the Mexican Commerce Code.

      In 2011, the Mexican Commerce Code was amended to add a section that addresses the enforcement of measures granted by arbitral tribunals. Article 1479 of the Mexican Commerce Code states that interim or provisional relief granted by arbitral tribunals are binding upon the parties and must be recognised and enforced unless the court is allowed to refuse such recognition according to article 1480. Article 1470 of the Mexican Commerce Code establishes that a summary proceeding shall be followed for the recognition and enforcement of the interim measures granted by the arbitral tribunal.

      A party that obtained an interim or provisional relief from the arbitral tribunal shall file a request before the corresponding judge. After the process of service to the defendant, the latter shall present its answer within the following 15 days (article 1473). If proofs were offered, there will be a probationary period of 10 days (article 1475). After three days, a hearing for closing arguments shall take place (1474) and afterwards the judge shall issue his ruling (1476).  

      Last verified on Friday 1st May 2020

    • Mexico

      No, arbitral tribunals do not have authority over individuals or entities that are not parties to the arbitration agreement. Hence, the arbitral tribunal cannot issue orders, subpoenas or use other legal processes over a third party.

      Arbitral Tribunals may request a third party to produce evidence or a third-party witness to appear before them but since the arbitral tribunal does not have power over them, in case such third party does not comply with the arbitral tribunal’s request, the latter can’t draw adverse inferences or sanction such third party.

      Last verified on Friday 1st May 2020

    • Mexico

      Pursuant to article 1444 of the Mexican Code of Commerce, the arbitral tribunal or a party with the approval of the arbitral tribunal, may request assistance from the courts in taking evidence. Mexican law does not provide further dispositions in this regard, so it is valid to interpret that such disposition has a wide scope.

      Last verified on Friday 1st May 2020

    • Mexico

      Yes, article 1425 of the Mexican Code of Commerce states that even when there exists an arbitration agreement, a party may request, before or during the arbitral proceedings, from a court the adoption of interim measures.

      Last verified on Friday 1st May 2020

    • Mexico

      Despite this circumstance is not a common practice, there have been some cases in which courts have issued such injunctions enjoining arbitral proceeding from going forward.

      In one case, a foreign party sought arbitration against a Mexican company. The Mexican company attempted to resist the arbitration and initiated a procedure before a municipal court in a northern Mexican state in which the company requested the Mexican court to declare that the arbitration agreement was null and void and to order an anti-arbitration injunction. The municipal court considered that irreparable harm could be caused if the arbitration continued. The petition was granted and the anti-arbitration injunction was issued. The arbitral tribunal decided not to suspend the arbitration based on article 1424 of the Mexican Commerce Code. In this case, the municipal court issued an order threatening to sanction the arbitral tribunal should it continue to conduct the arbitration despite the anti-arbitration injunction.

      The decision of the municipal court was reviewed by a Federal Circuit Court that unanimously resolved that the municipal court’s order suspending the arbitration was illegal. The Circuit Court interpreted that article 1424 of the Mexican Commerce Code prevented the courts from suspending an arbitration.

      In other cases, an anti-arbitration injunction was obtained by the respondent at the outset of the arbitration. The arbitral tribunal continued the arbitration and the respondent ceased to participate in the procedure. The respondent filed a petition to vacate the award before a local court. The local court vacated the award since it considered that respondent’s due process rights were breached derived to the continuation of the arbitration despite the judge’s order to suspend it. A Circuit Court revoked the judgment and ordered the recognition and enforcement of the award. The Circuit Court resolved that the continuation of the arbitral proceedings does not affect a respondent’s rights since it has the opportunity to act in the arbitration and simply decided just not to.

      Last verified on Friday 1st May 2020

    • Mexico

      Mexican Law does not foresee this case. In Mexico, post-award interest does not run automatically, so for them to accrue it is required that the arbitral tribunal expressly granted them in the award.

      Last verified on Friday 1st May 2020

    • Mexico

      Yes, arbitral tribunals have power to award attorneys’ fees. According to article 1453 of the Mexican Commerce Code, the arbitral tribunal shall fix the cost of the arbitration in the award. Article 1455 of the Mexican Commerce Code disposes that costs shall be bear by the unsuccessful party; however, the arbitral tribunal may distribute the costs between the parties if the arbitral tribunal deems it appropriate.

      Likewise, when defining costs, the Mexican Commerce Code in article 1416 it states that costs of arbitration can include representation and legal assistance costs of the prevailing party if such costs were requested.

      Last verified on Friday 1st May 2020

  • Awards - content

    • Mexico

      Mexican Law does not expressly foresee these scenarios. Nevertheless, the definition of an arbitration agreement contained in article 1416 states that it is an agreement by the parties to submit to arbitration all or certain disputes that have arisen or that may arise between them in respect of a defined legal relationship, whether contractual or not. It is expressly recognised that an arbitration agreement can cover non-contractual disputes. Therefore, if the arbitration agreement covers such disputes, the arbitral tribunal will have the power to award interest.

      Regarding the power of an arbitral tribunal to award punitive or exemplary damages, under Mexican law, damages are only compensatory. Mexican law does not regulate punitive damages. In a criterion of the First Chamber of the Supreme Court of Justice, punitive damages were conceptualised as part of the right to a fair indemnification in civil cases. Considering such criterion, there are divided opinions in respect of the power of an arbitral tribunal for awarding punitive damages. It is a matter of interpretation as punitive damages are not regulated.

      Last verified on Friday 1st May 2020

    • Mexico

      As previously mentioned, the Mexican Code of Commerce follows the UNCITRAL Model Law on International Commercial Arbitration, so Mexico incorporated the same grounds for setting aside an arbitral award as such model law. In Mexico, arbitral awards are final and binding and not subject to an appeal. An arbitral tribunal can only be set aside pursuant to article 1457 of the Mexican Code of Commerce after following the summary proceeding set forth in articles 1472 to 1476.

      The grounds for vacating an arbitral award established in article 1457 of the Mexican Commerce Code, are if:

      (I) the party making the application furnishes proof that:

          • a party to the arbitration agreement was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the Mexican law; or
          • the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
          • the award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agreement, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or
          • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of the Mexican Code of Commerce from which the parties cannot derogate, or, failing such agreement, was not in accordance with the Mexican Code of Commerce; or

      (II) the court finds that the subject-matter of the dispute is not capable of settlement by arbitration under Mexican law; or the award is in conflict with the public policy of Mexico.

      Last verified on Friday 1st May 2020

    • Mexico

      No, the only grounds for vacating an arbitral award are those established in article 1457 of the Mexican Commerce Code, which does not include lack of reasonableness, manifest disregard or mistake in the application of substantive law as grounds for setting aside an arbitral award. The grounds foreseen in article 1457 of the Mexican Commerce Code are numerus clausus, hence can´t be applied analogously to other cases not expressly foreseen.

      Last verified on Friday 1st May 2020

    • Mexico

      Yes, in a case involving a public entity and a particular, a ruling setting aside the arbitral award was issued. This judgment was confirmed in amparo. The reasoning for vacating the award was based on the fact that the court considered that an act of authority was not subject to arbitration. The court considered that is was a matter of public policy that an arbitral award can’t rule on acts of governmental authorities.

      Last verified on Friday 1st May 2020

    • Mexico

      According to article 1458 of the Mexican Code of Commerce, the petition for setting aside an award shall be filed within three months from the date in which the arbitral award was notified or, if there was a petition for correction and interpretation of an award, from the date on which such request had been disposed by the arbitral tribunal.

      Last verified on Friday 1st May 2020

    • Mexico

      In a case in which the court had to solved whether the arbitral tribunal decided or not a dispute not contemplated within the terms of the arbitral agreement, the court sustained that arbitration has a constitutional anchorage and represents the affirmative exercise of a constitutional freedom protected by the state. The court also established that the standard for the judicial review is limited and only consists in determining if there are grounds for vacating the arbitral award, but does not imply an intrusive scrutiny from the judiciary. When solving a setting aside procedure, the court shall refrain from substituting their criteria by that of the arbitrators.

      Last verified on Friday 1st May 2020

  • Awards enforcement

    • Mexico

      No. Article 1415 of the Mexican Code of Commerce states that Title Fourth and the international treaties in which Mexico is a party, will apply to national and international commercial arbitration whenever the seat of arbitration is Mexico. It also states that dispositions regarding the request to refer parties to arbitration, interim measures and recognition and enforcement of awards, the Mexican Code of Commerce will be applicable even if the seat of arbitration is abroad.  

      Last verified on Friday 1st May 2020

    • Mexico

      No, even though an arbitral award is not subject to appeal, parties cannot waive the procedure for setting aside and/or of recognition and enforcement of an arbitral award. In Mexico the access to court is deemed to be a fundamental right that cannot be renounced nor restricted.  Any agreement of the parties in this sense will be void under Mexican law.

      Last verified on Friday 1st May 2020

    • Mexico

       Mexico does not distinguish between the process for enforcing a national or international arbitral award. For the recognition and enforcement of an arbitral award a summary proceeding shall be followed.

      Pursuant to article 1461 of the Mexican Code of Commerce, an arbitral award, regardless of the country where it was made, is binding and the party seeking recognition and enforcement of an arbitral award shall supply the original award or a copy of it, as well as the original of the arbitration agreement of copy thereof. In case the arbitral award or the arbitration agreement is not in Spanish, a translation by an official translator expert is required. The petition for the recognition and enforcement of an arbitral award may be filed either before the state or federal court of first instance of the respondent’s address or of the place where the assets are located (article 1422).

      According to article 1471 of the Mexican Code of Commerce, homologation is not needed for the recognition and enforcement of an arbitral award and the procedure to be followed is the same summary procedure applicable to the enforcement of interim measures described in question 34.

      Last verified on Friday 1st May 2020

    • Mexico

      First, it is important to note that the ruling issued in the procedure for the enforcement of an arbitral award is not subject to an appeal pursuant to article 1476 of the Code of Commerce. Such procedure normally takes an average of six months to one year.  

      Since the ruling is not subject to appeal, there are no ordinary remedies, but the party unsuccessful in the enforcement procedure may file an amparo claim to challenge the ruling of the court of enforcement.

      With the 2011 amendment to the Code of Commerce, the procedure for setting aside or enforcing an arbitral award was understood as a principal procedure, in contrast of an incidental procedure, and it was interpreted that the corresponding amparo to be filed against the enforcement ruling was a direct amparo, which is not subject to any review. However, in December 2019, the First Chamber of the Supreme Court issued a criterion (jurisprudencia) establishing that against a ruling of the court of enforcement, the indirect amparo proceeds. As a consequence, against the judgment issued in the indirect amparo, it is possible to file a motion to review (Amparo en Revisión). The indirect amparo and the motion to review may take jointly an average of 10 months.  

      Last verified on Friday 1st May 2020

    • Mexico

      It takes considerably less time to enforce an arbitral award rendered abroad than to homologate a foreign judgment. The enforcement procedure, either for domestic and international award, including the amparos that may be filed may take around one year and a half, while the procedure for homologating a foreign judgment may take more than two years

      Last verified on Friday 1st May 2020

    • Mexico

      The recent experiences in Mexico show that foreign arbitral awards have been successfully enforced, which reflects the position of the courts to respect the New York Convention and the principles contained in the UNCITRAL Model Arbitration Law.

      However, there is an unfortunate case that adds an unnecessary formality to the requirements for enforcing an award. In this case, the prevailing party applied for the enforcement of an arbitral award, the court analysed the requirements for the recognition and enforcement of an arbitral award set forth in article 1461 of the Code of Commerce. In its decision, the court considered that the aforementioned article required the requesting party to prove that the original of the award is true and certain regarding the identity of the arbitrator or arbitrators. The court deemed that the language “duly authenticated” in article 1461 included a formality that will be fulfilled if the requesting party supply the arbitral award authenticated by a public notary or a true copy issued by authorised staff of the seat of arbitration.

      Last verified on Friday 1st May 2020

  • The outlook

    • Mexico

       We do not have knowledge of a court refusing to enforce an international award based on the grounds of public policy. However, Mexican courts have stated that public policy falls within an undefined legal concept but has a hard core that locates public policy in the scope of legal principles that protect the fundamental essences of the legal institutions that harmonise with the public order. The courts have acknowledged that such principles have a substantive and procedural nature. Courts have established that public policy includes whatever is unavailable for the parties and for the arbitrator.

      Last verified on Friday 1st May 2020

    • Mexico

      The courts in Mexico have discretionary powers to decide whether or not to enforce an arbitral award that previously has been set aside in the court of the seat of arbitration. Article 1462 of the Code of Commerce provides the grounds for refusing recognition and enforcement of an arbitral award. Section (I)(e) of the aforementioned article provides states as ground for the refusal that the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made. The party resisting the enforcement of the award shall proof this ground for refusing the enforcement of the award.

      Last verified on Friday 1st May 2020

    • Mexico

      Mexico has a policy in favour of arbitration. The majority of the ruling and criterion issued by Mexican courts in connection to arbitration confirm the judiciary’s position of respecting the principles behind the UNCITRAL Model Arbitration Law and the New York Convention. Even though there have been cases that depart from said principles, that shall not be interpreted as a bad sign. The unfortunate cases are due to a misapplication and bad reading of the Mexican Arbitration Law, which reflect a lack of arbitration cases in the judiciary, showing that parties are more likely to voluntarily comply with the award.

      There are several decisions showing that most of the courts respect the party-autonomy, the principle of separability of the arbitration agreement and the limitation of the courts’ intervention in arbitration matters. However, the unfortunate decisions that have been issued may hinder the future of arbitration in Mexico.  

      Last verified on Friday 1st May 2020

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