MEXICO Law and Practice Contributed by: Enrique Espejel, Diego Mora-Jensen, José Joaquín Pacheco and Luis Enrique Pérez García, White & Case
the condemned party has elapsed, different scenarios may unfold at the enforcement stage. This enforce - ment procedure or stage is the final phase of any judicial proceedings and its purpose is to use force to obtain compliance with the final judgment. This is why, depending on the content of the judgment, the authors can premise the following. • In the event of a declaratory judgment, there will be no enforcement stage because declaratory judg - ments only contain a pronouncement on the exist - ence of a right or obligation but do not oblige the parties to do or refrain from doing something. • In the event that the judgment orders a personal obligation to do something, the judge will order the defendant to perform the obligated action imme - diately and the plaintiff may claim damages or proceed to the collection of the alternative penalty established in the judgment. • In the event that the judgment orders a non-per - sonal obligation, the judge will appoint a different person to perform the obligation at the expense of the judgment debtor in the judgment or will pro - ceed to the calculation and collection of damages – depending on the plaintiff’s choice. • In the event that the judgment orders the signing of a document, the judge will sign the document on behalf of the defendant – without the need for their intervention – and it will have all the legal effects as though it had been signed by the defendant. • In the event that the judgment orders the delivery of real estate, money, books, papers or any object/ thing, the judge will make use of all the means of compulsion within their reach – such as the use of fines, seizure and withholding of goods, and even arrest for breach of court order – to achieve the payment of what is owed. The judge may grant a term of up to 60 days in which to vacate real estate. Please note that, pursuant to case law issued by the Mexican Supreme Court of Justice and the collegiate courts in Mexico City, the suitable remedy against the resolutions in the post-judgment procedures for deter - mining defendants’ assets is the amparo trial if: • the resolution approves the total compliance with the ruling;
• the resolution confirms it is not possible to execute the ruling; • the resolution is the last in the auction proceeding; • the resolution(s) quantify non-liquid amounts to execute the ruling; and • the resolution(s) directly affect human rights. 2.5 Challenging Enforcement of Domestic Judgments Enforcement is the mechanism available to the parties that obtained a favourable judgment should the con - demned party refrain from voluntarily complying with the judgment within the term granted by the judge. As such, the condemned party has three ways of pre - venting the enforcement of a judgment in which its assets are secured and taken to public auction: • voluntary performance of the obligation; • a transaction, compensation, or arbitral compro - mise, provided that it is requested 180 days after the judgment becomes final; or • a settlement between the parties that modifies the obligation contained in the judgment in favour of the winner of the judicial contest. The person subject to the final judgment may only question or challenge the process of enforcing the judgment if the acts therein do not comply with the law or violate constitutional principles, such as privacy, confidentiality, or bank secrecy. However, through such challenge (appeal and amparo proceedings), the finality of the judgment and the existence of an enforcement procedure cannot be questioned – rath - er, only the guidelines issued by the judge to achieve its performance can be questioned. 2.6 Unenforceable Domestic Judgments Mexico does not have a catalogue of judgments that are unenforceable. However, the judgment can only be enforced by the judge of origin – ie, by the judge who originally heard the dispute – except in cases of extinction or reassignment of judicial bodies. Additionally, in order to be enforceable, the judgment must be final – ie, the legal term must have elapsed without the parties having challenged the judgment or, if they have done so, the remedy must have been declared unfounded or insufficient by a final judgment.
307 CHAMBERS.COM
Powered by FlippingBook