MEXICO Trends and Developments Contributed by: Fernando del Castillo Elorza and Ana Elizalde, Del Castillo & Castro Abogados
This same learning curve is also observed, albeit to a lesser extent, in lower courts. The result is a judiciary which, as a whole, is still adapting to its new structure. In practice, this has several consequences that have placed the manner in which disputes are resolved in Mexico under strain. The primary and most noticeable consequence is that judicial criteria are in constant flux; it is not uncommon to see courts revisiting or refining their approach to issues that were previously regarded as settled. As a result, criteria that were once considered binding are now in the process of consolidation. On the other hand, decision-making may also take longer in certain cases. The learning curve requires time in order to develop the experience necessary to resolve cases and establish criteria, particularly where newly appointed members are still adapting to the functioning of courts and tribunals. In parallel, and as a consequence, a significant effort has been made to strengthen support teams through- out the judiciary, expanding the personnel assigned to each judicial body. However, this has extended the adaptation process beyond judges themselves to include clerks and administrative staff. In many respects, this is a transitional phase. For liti- gants, this means that they must pay close attention not only to the applicable law, but also to how courts are currently interpreting and applying it in practice, avoiding reliance on criteria that were previously regarded as settled and anticipating that resolution timelines may be longer as a result of the adaptation process of newly appointed members. Pre-Existing Uncertainty and Evolving Risk Perception It cannot be overlooked that, even prior to the recent reform, uncertainty was already a feature of litiga- tion in Mexico. Whilst the system formally recognises binding precedent, its interpretation has not always been entirely uniform across different jurisdictions.
This cannot be attributed entirely to the reform; how- ever, the reforms have, to some extent, amplified this perception. As the reconstituted Supreme Court has begun to issue decisions, certain established criteria have been reconsidered and, in some cases, set aside. Moreo- ver, although it was ultimately not adopted, there was even a proposal to revisit past decisions, raising the possibility of reopening cases and obtaining new rul- ings – an approach that would clearly have conflicted with the principle of res judicata. To date, however, this proposal has not been approved. This has introduced an additional degree of variabil- ity, particularly in areas of law that were previously regarded as relatively settled, creating a new factor that litigants must consider when developing strate- gies for dispute resolution. As a result, assessing litigation risk now involves more than analysing the legal merits of a case. It also requires a more contextual assessment of how those merits may be interpreted by a given court at a par- ticular point in time. This does not necessarily undermine confidence in the system as a whole, but it does reflect the reality of a judiciary in transition. For many parties, it has led to a more cautious approach to litigation, as well as a greater willingness to consider alternative dispute resolution mechanisms. Implementation of National Procedural Codes and the Shift Towards Oral Proceedings The National Code of Civil and Family Procedure, pub- lished on 7 June 2023 in the Official Gazette of the Federation, represents a significant step towards the harmonisation of procedural rules throughout Mexico. It replaces a previously fragmented system in which each state applied its own procedural framework, often with notable differences. In addition to harmonisation, the reform introduces a more fundamental shift in the Mexican legal system, bringing the administration of justice closer to a pre- dominantly oral system.
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