MEXICO Law and Practice Contributed by: Enrique Espejel, Diego Mora-Jensen, José Joaquín Pacheco and Luis Enrique Pérez García, White & Case
Defects in the Arbitral Decision This second category includes all those awards whose grounds for non-enforceability derive from the decisions made by the arbitrators. Although Mexican judges are prevented from reviewing the merits of the case, the following defects can be found in arbitral decisions. Inconsistent awards Arbitral awards will not be enforced where there is a disparity between the decision of the arbitral tribunal and any of the following: • the arbitration agreement; • the provisions of the legal relationship of the par - ties; or • the petition filed with the arbitral tribunal. Non-arbitrable awards Awards are unenforceable where their subject matter cannot be subject to arbitration under Mexican law. Therefore, even if such award is in accordance with the law agreed upon by the parties, a Mexican judge may not enforce the award if it deals with any matter of which the arbitrability is prohibited by Mexican law. Awards that violate the public order Awards are unenforceable if their content is in violation of public order. An award may be in violation of public order – understood for practical purposes as violat - ing prohibitive and mandatory provisions of Mexican law – but its subject matter cannot be arbitrated, and vice versa. Annulment by Res Judicata Awards that have been annulled or suspended by a judge in the country in which they were rendered may not be enforced under Mexican law. Even if a Mexi - can judge has annulled an award, the enforcement of which is also being processed by Mexican courts, such award will be unenforceable – given that, under Mexican commercial law, judges must suspend the enforcement of an arbitral award if they are notified of its nullity. It is important to mention that courts in some countries have nonetheless taken the decision to enforce annulled awards in common law, in view of the pro-arbitration principle – for example, France (in the “Hilmarton” case), Austria (in the “Zdravilisce
Radenska” case), Belgium (in the “ Sonatrach v Ford ” case) and the USA (in the “Chromalloy” case). 4.4 Process of Enforcing Arbitral Awards For the enforcement of a commercial arbitral award, the Commercial Code established a specialised pro - cedure with few procedural stages. This is regulated by Article 1472 of the Commercial Code. Requirements of the Initial Brief The initial brief submitted by the plaintiff must indicate the following: • the judicial authority to which it is addressed (see 4.2 Variations in Approach to Enforcement of Arbitral Awards (Domestic or International Com - mercial Arbitration Awards) for details of how juris - diction is determined); • the name and surname of the natural person (or, in the case of a legal entity, its corporate name or denomination) seeking the enforcement of the award, as well as an address for service of notice, which must be located in the place where the judge in charge of the case resides; • in the case of Mexican promoters, a copy of the Unique Population Registration Code ( Clave Única de Registro de Población , or CURP), the Federal Taxpayer Identification Code ( Registro Federal de Contribuyentes , or RFC) and their official identifica - tion number; • the name and surname of the natural person (or, in the case of a legal entity, its denomination) against which the enforcement of the award is sought, as well as the address where the defendant may receive a service of notice; • the object claimed (ie, the judicial declaration that the award is enforceable and that the enforcement of the award will proceed); • the facts preceding the enforcement of the award (eg, the origin of the dispute that led the parties to the arbitration proceeding, the procedure thereof, and the details of the award delivered); • the legal grounds for enforcement of the award, which in this case are Articles 1471 to 1477 of the Commercial Code, specifying that the action is the specialised procedure for the recognition and enforcement of commercial arbitration awards; • the value of the claim;
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