MEXICO Law and Practice Contributed by: Jorge Asali, Omar Colomé, Rodrigo Macin and Saul Fonseca, Bufete Asali
That said, the way this rule applies in practice may depend on the specific procedural circumstances and the timing or substance of the jurisdictional objec - tion. Courts may analyse the issue on a case-by-case basis, particularly in complex cases involving multi-
Convention and Article 8 of the UNCITRAL Model Law. Under these provisions, the court must refer the matter to arbitration only if a party so requests, and only if the arbitration agreement is found to be valid, enforceable, and applicable to the dispute. There is no strong judicial culture of reluctance or willingness in allowing such proceedings to continue. The system is structured around party initiative: courts generally do not question jurisdiction on their own, and will only halt proceedings when a timely and sub - Mexican law does not expressly authorise arbitral tribunals to assume jurisdiction over individuals or entities that are not signatories to the arbitration agreement. The general principle, as consistently recognised by the courts, is that arbitration is based on consent and is binding only between the parties to the agreement. In certain cases, the judiciary has suggested that when rights governed by an arbitration clause are trans - ferred – such as through succession or assignment – the arbitration agreement may follow those rights. A party stepping into the legal position of another might, under this reasoning, be treated as bound by the same dispute resolution mechanism. stantiated request for referral is made. 5.6 Jurisdiction Over Third Parties Elsewhere, courts have reaffirmed the general princi - ple that arbitration agreements apply strictly between the contracting parties. However, they have also acknowledged that in intricate commercial scenarios – particularly those involving layered contracts or co- ordinated transactions – the strict inter partes rule may warrant careful contextual analysis. In a separate line of reasoning, courts have declined to annul arbitration awards solely on the basis that some participants in a broader contractual scheme were not formal signatories to the agreement containing the arbitration clause. This suggests that the enforce - ability of such awards may, in some circumstances, survive challenges grounded in lack of formal consent. Ultimately, whether an arbitration agreement binds a non-signatory is a matter that must be assessed on a
tiered clauses or parallel proceedings. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility
Mexican law does not expressly define the standard of judicial review for questions of jurisdiction or admis - sibility. The Commerce Code provides the procedural framework, but it does not clarify whether courts should apply a de novo or deferential standard in reviewing arbitral rulings on these issues. In practice, the approach appears to be case-specific. Courts have recognised the principle of competence- competence, allowing arbitral tribunals to rule on their own jurisdiction. However, the extent to which courts defer to those determinations – particularly in annul - ment or enforcement proceedings – may vary depend - ing on the circumstances of the case, the nature of the objection raised, and the procedural stage at which it arises. For questions of admissibility, such as compliance with pre-arbitration steps or timing of claims, there is even less clarity, and Mexican courts have not estab - lished a uniform standard. These issues are often treated as falling within the tribunal’s discretion, but judicial review cannot be ruled out entirely, especially where public policy concerns are raised. As a result, there is no settled rule, and the standard of review remains largely undefined in statutory terms, leaving room for judicial discretion and interpretation on a case-by-case basis. 5.5 Breach of Arbitration Agreement Mexican courts do not act ex officio to enforce arbitra - tion agreements. If a party initiates court proceedings in breach of an arbitration clause, the court will gener - ally proceed with the case unless the opposing party formally requests referral to arbitration. This approach is consistent with Article 1424 of the Commerce Code, as well as Article II of the New York
539 CHAMBERS.COM
Powered by FlippingBook