MEXICO Law and Practice Contributed by: Enrique Espejel, Diego Mora-Jensen, José Joaquín Pacheco and Luis Enrique Pérez García, White & Case
tained in Articles 571 of the Federal Code of Civil Procedures and 1347-A of the Commercial Code – namely, that: • the letter rogatory sent with the foreign judgment to be executed does not comply with legal require - ments; • the judgment deals with an action in rem; • the essential formalities of the procedure have not been complied with in the original court case; • the content of the foreign judgment is contrary to Mexican public order; • the documents sent are not authenticated; • the judgment is not final according to the laws of the country of origin; or • the action originating from abroad is not the sub - ject matter of a lawsuit still pending within Mexican territory. However, Mexican judges are prevented from analys - ing the merits of the case or the subject matter of the foreign judge’s decision. Likewise, the judgment by which the Mexican judge orders the execution or denies it may be challenged by means of an appeal by the non-complying party. Once notified of the deci - sion, the party will have 12 days to appeal in civil mat - ters and nine days in which to appeal in the case of commercial matters. 4. Arbitral Awards 4.1 Legal Issues Concerning Enforcement of Arbitral Awards Principle of Minimum Intervention in Mexican Judicial Practice In recent years, the judicial criteria issued by Mexican judges and courts in commercial arbitration matters have been highly criticised, on the grounds that their interpretation strays far from the principle of “mini - mum intervention”. The principle of minimum judicial intervention (or minimum intervention) is based on Article 17 of the Mexican Constitution, which recog - nises ADR mechanisms and affords them a status comparable to centralised dispute resolution before the courts. Therefore, ADR mechanisms are not sub - sumed by state jurisdiction but merely contribute to its execution and collection.
Although the latest legislative reform on commercial arbitration in Mexico – through which several provi - sions of the Commercial Code were amended to adopt the UNCITRAL Model Law on International Commer - cial Arbitration 1985 (the “UNCITRAL Model Law”) – established the principle of minimum intervention as a fundamental and guiding principle for jurisdictional function in commercial arbitration, the judicial criteria that have been developed around it hinder compli - ance with such principle. As an inherent consequence of the aforementioned improper judicial practice, the authors have identified the following main complica - tions that litigants may encounter when appearing before a Mexican judge to request the recognition and enforcement of an arbitral award. Five Main Complications When Enforcing an Award in Mexico Simultaneous enforcement and annulment of arbitral awards In Mexico, the simultaneous processing of an enforce - ment proceeding and a nullity proceeding with regard to the same arbitral award is not prohibited. This could potentially lead to contradictory rulings on the validity of an arbitral award by different Mexican judges. It is important to note that Mexican law provides a mechanism for the joinder of both proceedings (enforcement and annulment). However, such proce - dure is only feasible if the hearing of pleadings has not been held in either proceeding. Several Mexican col - legiate courts have established that, in these cases, it must be understood that the enforcement and nullity proceedings are autonomous and deal with a differ - ent issue. Challenge to the enforcement of arbitral award is not resolved immediately The amparo proceeding is a judicial procedure aimed at the control of constitutionality, whereby a district judge reviews whether the challenged acts of the authorities are constitutional and protect the human rights of individuals. Otherwise, they must revoke such acts of authority. Previously, case law consid - ered that the enforcement of an award could be chal - lenged through a “direct” amparo proceeding – in other words, a single-instance amparo proceeding.
311 CHAMBERS.COM
Powered by FlippingBook