MEXICO Law and Practice Contributed by: Carlos de la Garza, Raúl Acosta and Enrique Tamez, De la Garza & Acosta Abogados, S.C.
insurer, without liability for the depositary institution and without requiring the insurer’s consent. Alterna- tively, in the case of depositary institutions referred to in the Securities Market Law, the securities may be transferred to a securities market intermediary to carry out said sale. Judgments issued abroad may also be enforced in Mexico, provided they are final (ie, not subject to appeal or modification) and meet certain requirements. These include adherence to the essential formalities of due process, such as ensuring that the issuing judge was competent, that the defendant was notified and given an opportunity to present their defence, and, where applicable, the attachment of a certified trans- lation of the judgment. 9.5 Enforcement of Arbitration Clauses While the Commercial Code permits parties to submit commercial disputes to arbitration and the principle of pacta sunt servanda prevails in commercial matters, the reality is that, as insurance contracts are generally adhesion contracts, any clause in such contracts that imposes arbitration unilaterally on the insured by the insurer is considered invalid. Nevertheless, the Sole Insurance and Bonding Cir- cular requires insurance companies to include an option for the insured to submit disputes concern- ing pre-existing illnesses or conditions to arbitration in contracts for medical expense insurance, personal accident insurance and health insurance. This must be conducted through independent medical arbitra- tion, with provisions clearly defining the independence of such arbitrators and the process for their appoint- ment. This is quite common in reassurance disputes, as most controversies in this area are resolved through commercial arbitration. As a rule, such arbitration agreements and the awards resulting from them are valid and enforceable. 9.6 Enforcement of Awards Mexico is a jurisdiction that recognises the validity of arbitral awards, and their enforcement is provided for and upheld by law. Regardless of the country in which it was issued, an arbitral award will be recognised as
binding and, upon the submission of a written petition to the appropriate judge, will be enforced in accord- ance with the provisions of the Commercial Code. Under the Commercial Code, initiating the enforce- ment of foreign commercial arbitration awards in Mexico requires the original authenticated award or a certified copy thereof to be filed with a competent court. However, in December 2022, the Supreme Court unanimously ruled that the requirement to present the original award “duly authenticated” or a certified copy thereof violates the right of access to justice. There- fore, this requirement can no longer limit the enforce- ment of an arbitral award. The recognition and enforcement of a commercial arbitration award may only be denied if one of the grounds stipulated in Article 1462 of the Commercial Code is proven, such as: • one party to the arbitration agreement was under some incapacity, or the agreement itself is invalid; • one party was not properly notified of the appoint- ment of an arbitrator or the arbitration proceedings, or was otherwise unable to assert their rights; • the award addresses a dispute not covered by the arbitration agreement; • the composition of the arbitral tribunal or the arbi- tral procedure did not comply with the agreement of the parties; • the award is not yet binding on the parties or has been annulled or suspended by a court in the country where it was issued; or • the court determines that, under Mexican law, the subject matter of the dispute is not arbitrable, or that recognition or enforcement would conflict with public policy. Mexico is a party to the Convention on the Recogni- tion and Enforcement of Foreign Arbitral Awards and the Inter-American Convention on the Extraterrito- rial Effectiveness of Foreign Judgments and Arbitral Awards.
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