MEXICO Law and Practice Contributed by: Enrique Espejel, Diego Mora-Jensen, José Joaquín Pacheco and Luis Enrique Pérez García, White & Case
• the offer of evidence to accredit the proceeding to enforce the arbitration award; and • a handwritten signature or, in the case of being filed digitally, an electronic signature recognised by the corresponding court. Likewise, the evidence and documents in support of the action – along with enough simple copies of the claim and its annexes to be delivered to each defendant – must be attached to the initial brief. It is necessary for the admission of the claim that the plaintiff exhibits the duly authenticated original award (or a certified copy thereof) and the original arbitration agreement (or a certified copy thereof). Procedural Stages The procedure for enforcing an arbitral award in Mex - ico comprises the following stages. • Admission of the claim and service of notice – once the claim has been admitted, the judge will serve notice to the party against whom the arbitration award is being enforced, giving 15 business days to answer the claim. • Evidentiary stage – once the claim has been answered, a period of ten days will commence in which the evidence offered by the parties is presented in court. During this period, a hearing will be held in which the judge will analyse the evidence and, if witnesses are called, conduct the interrogation. • Judgment – once the evidentiary stage is over, the judge will have a period of 15 ordinary days to deliver the final judgment declaring the enforce - ment or partial enforcement of the award or deny - ing its enforcement. The judge will have the option of extending the period for an additional ten days. If the parties do not file an amparo proceeding against the final judgment delivered by the judge within 15 business days following service of notice, the judg - ment will become final – meaning that it may be enforced voluntarily or by force. 4.5 Costs and Time Taken to Enforce Arbitral Awards There is no clear parameter by which to determine the average time it takes enforce an award in Mexico nor
the costs involved. However, several factors influence the cost and duration of the procedure, as follows. • Judicial saturation – a saturated judicial system (which is the case for the Mexican judicial system) has a direct impact on delays and costs. • Legal costs – the rates for legal services in Mexico are highly variable and procedural agility before the court will vary from office to office. • Disagreement of the parties over the content of the arbitration award – when one of the parties does not agree with the arbitral award, that party could delay the enforcement proceeding by challenging each of the resolutions issued by the court. 4.6 Challenging Enforcement of Arbitral Awards In Mexico, judges cannot review the merits of the award. Once the arbitral tribunal issues the final award, the parties cannot challenge it through an ordinary appeal. However, the parties may challenge the judicial resolution that orders the enforcement of an arbitral award by the means of an indirect amparo proceeding, which has two instances – given that the judgment delivered therein may be subject to review by a collegiate court. It is important to note that Mexican jurisprudential cri - teria recently established that the nullity of an interna - tional arbitral award must be ruled by a judge located in the same place as where the arbitration took place. On the other hand, the parties have the option of invalidating the award through a nullity proceeding, without this allowing the judges to review the merits of the case. The provisions adopted in the Commercial Code for such a proceeding are equivalent to those contained in the New York Convention – ie, such a court case will only consist of analysing the validity of the award but it is not an ordinary means to achieve its enforcement. One Step Back: Competence-Competence The principle of “competence-competence” has been embodied in Article 1432 of the Commercial Code since 1993. In spite of this, in 2006, the Mexican Supreme Court of Justice determined that arbitration
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