MEXICO Law and Practice Contributed by: Enrique Espejel, Diego Mora-Jensen, José Joaquín Pacheco and Luis Enrique Pérez García, White & Case
However, in a new case law, the Mexican Supreme Court of Justice determined that the enforcement of an award can be challenged through the “indirect” amparo proceeding and not the “direct” amparo proceeding. Under Mexican law, even though both types of amparo proceedings have the same purpose, the indirect amparo proceeding has two instances, whereas the direct amparo proceeding has only one instance (with exceptions). The foregoing implies that the judgment delivered in an indirect amparo proceeding is not final and may be subject to a motion for reconsideration. Consequently, this revision by the Mexican Supreme Court of Justice forces the parties to face a double-instance amparo proceeding. Instead of a single-instance amparo pro - ceeding to obtain a final judgment for the enforcement of the award, the arbitrability of the matter depends on the arbitrability of the case. Arbitrability of the matter depends on Mexican law Before Mexican courts, the enforcement of the award depends on whether the subject matter of the dispute settled in the award can be arbitrated under Mexi - can law, even in the case of international commercial arbitration. This implies that, even if the dispute was subject to arbitration under the law of the forum where the arbitral award was rendered, the award will not be enforceable in Mexico if Mexican law does not allow the dispute to be subject to arbitration. In this respect, Mexican law adopted a centralised position concerning the performance of arbitral awards in Article 1462 of Section II of the Commercial Code. This is due to the fact that an award’s capacity to be enforced depends on the arbitrability of the mat - ter according to Mexican law, regardless of whether the award is included in a valid decision by the arbitral court. This creates a conflict when enforcing an arbi - tral award, as – despite the fact that an arbitral tribunal with competent jurisdiction has definitively issued the award – it cannot be enforced within Mexican terri - tory unless the dispute is subject to arbitration under domestic law. This limitation was included as a basis for the denial of awards by the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New
York Convention”) – specifically, in Article V. However, the New York Convention states that the judge may refuse to enforce the award in these cases but does not have to (ie, it is not mandatory). Uncertainty concerning the concept of public order This complication when enforcing arbitral awards does not derive from the prohibition established in the Commercial Code, as the Mexican legislator sought to safeguard the fundamental rules of Mexican law. The problem derives from the lack of a clear and binding judicial criterion as to what falls under the undefined concept of “public order”. The party opposing the enforcement of the award has in its hands a tool that has not been clearly defined, as the judge may interpret the concept of “public order” as broadly as possible, depending on the needs of the parties. The difficulty of handling this concept has caused problems in other jurisdictions, as well as Mexico. By way of an example, the Swiss Federal Tribunal has emphasised the complexity of this issue in Tensaccia SPA v Terra Armata RL (dated 8 March 2006). Meaning of arbitration agreement in Mexican courts It should be emphasised that Article 1416 of Section I of the Commercial Code establishes that the arbitra - tion agreement is, specifically, a clause or independ - ent agreement by which the parties decide to submit to arbitration all or certain disputes that have arisen or may arise between them. In this respect, the wording of the article is clear and firm. One of the grounds for non-enforcement of an award that the Commercial Code sets forth – the origin of which derives from the New York Convention – is if the award contains decisions that exceed the terms of the arbitration agreement. Therefore, according to Article 1416, the most logical interpretation would be that the award should not be enforced if it concerns matters that are specifically not included in the arbitra - tion agreement. However, some courts have established that the judi - cial review of the concordance of the award with the
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