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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
Name of Contracting State (also specify jurisdiction(s), if relevant)
Mexico.
Mexico is a federal republic comprising 32 entities. In certain areas, the jurisdiction of the federal government and that of the states and territories overlap. The federal government and each state have their own judicial systems composed of a court of first instance and a court of appeal.
Date of entry into force of the New York Convention
13 July 1971.
The New York Convention's entry into force in Mexico was the result of the following constitutional process: the Convention was approved by the Mexican Senate on 15 Oct. 1970, and the instrument of ratification/accession was filed with the Secretary General of the United Nations on 14 April 1971 and published in the Federal Official Gazette on 22 June 1971.
(Source: Decree published in Federal Official Gazette, 22 June 1971, pp. 2(4.)
Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
No.
(Source: Decrees published in Federal Official Gazette. 14 Nov. 1970 and 22 June 1971.)
(b) commercial relationships?
(Source: Decrees published in Federal Official Gazette, 14 Nov. 1970 and 22 June 1971.)
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
There is no specific limitation period applicable to recognition and enforcement of foreign awards under the Mexican arbitration law. However, both the Commerce Code and Federal Code of Civil Procedures provide for a generic time limit that applies where no specific time limit is provided.
(Source: Commerce Code, Art. 1047; Federal Code of Civil Procedures, Art.1159.)
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The generic time limit of ten years applies to all actions for which no specific time limit is provided. In principle, the time limit starts running from the date the final award is notified to the party requesting enforcement of the award.
(Source: Commerce Code, Arts. 1419, 1040, 1047, and 1419; Federal Code of Civil Procedures Art. 1159.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
As a general rule, if the dispute affects only private parties’ interests (i.e. does not involve a State or public entity), the applicant may, at its own discretion, choose between the federal or state court of first instance where the respondent is domiciled or where the respondent’s assets are located. However, federal courts have jurisdiction over all controversies that arise from the application of federal laws and international treaties (e.g. Commerce Code, including its provisions on international commercial arbitration, and the New York Convention). Consequently, jurisdiction over recognition and enforcement of foreign awards lies with the federal court of first instance (District Courts) (i) where the respondent is domiciled in Mexico or (ii) where the respondent's assets are located in Mexico.
(Source: Political Constitution, Art. 104. II; Commerce Code, Art. 1422; Federal Code of Civil Procedures, Art. 573.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
The respondent must have its domicile or assets (e.g. goods or property) within the jurisdiction of the court in which the applicant is requesting recognition and enforcement of a foreign award.
(Source: Commerce Code, Art. 1422.)
The recognition and enforcement of a foreign award may be denied due to certain grounds that, in broad terms, mirror the grounds for refusal in the New York Convention.
(Source: Commerce Code, Art. 1462).
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision granting or denying recognition and/or enforcement must be obtained through inter partes proceedings.
(Source: Commerce Code, Arts. 1470, 1472(1476.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
There is no appeal; however, either party may present a constitutional remedy known as amparo against the decision granting or denying recognition or enforcement of an award within 15 days from the day after which the decision was notification.
(Source: Commerce Code, Art. 1468; Amparo Law, Art. 170(1); Political Constitutions of the United Mexican States, Art. 107.)
(b) How many levels of appeal or recourse are available against this decision?
Two levels of appeal are available against the decision. The legal remedy against the decision on the recognition and enforcement of arbitral awards is the amparo directo. Additionally, it is possible to file a revision remedy against this amparo directo decision, if (i) the decision relates to the direct interpretation of a Constitutional provision or a provision regarding human rights, or (ii) if such issues were presented by one of the parties but neglected by the court, and (iii) if such decision sets an important standard according to the Supreme Court of Justice of the Nation.
(Source: Political Constitution of the United Mexican States, Art. 107 and Amparo Law, Arts. 81(2)
And 170(1).)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
The judgment recognizing and/or enforcing an award may be executed against assets (i) once the 15-day period for challenging the judgment has elapsed without a party initiating an amparo directo procedure or (ii) in the event an amparo directo procedure is initiated, after a decision upholding the judgment has been issued.
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing the arbitration clause, affidavits, witness statements, etc.)?
The following evidence must be filed: (i) the original award duly authenticated or a certified copy of the award, and (ii) the original or a certified copy of the arbitration agreement.
(Source: Commerce Code, Art. 1461.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
It is necessary to supply (i) the entire award and (ii) the whole arbitration agreement or the relevant pages of the document containing the complete arbitration clause.
(c) Are originals or duly certified copies required?
The following are required: (i) an original or a certified copy of the award and (ii) an original or a certified copy of the arbitration agreement.
(d) How many originals or duly certified copies are required?
One original or duly certified copy of the award and arbitration agreement are required.
(e) Does the authority or court keep the originals that are filed?
Yes. However, it is possible to submit to the court a written and reasoned request for the return of the originals.
13.
(a) Is it necessary to provide a translation of the documents supplied?
Yes.
(b) If yes, into what language?
Spanish.
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
An award rendered in a language other than Spanish must be translated by a translator on the list of experts registered with either federal or local courts.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
It is necessary to provide a full translation of the award and arbitration agreement. There is no need to provide a translation of the entire contract containing the arbitration clause.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
If any of the parties request the annulment or suspension of an award before a judge in the country where the award was issued or pursuant to the law to which the award is subject, the judge seized of the application for recognition or enforcement of the award has discretion to postpone a decision on the application and, if the applicant so requests, order the other party to provide sufficient security.
(Source: Commerce Code, Art. 1463.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
There are no specific grounds under Mexican arbitration law for staying legal proceedings for recognition and enforcement.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No. However, the court may, if it considers it appropriate and if the applicant so requests, order the respondent to provide sufficient security.
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Access to documents and information filed in legal proceedings for recognition and enforcement is restricted to persons having a legal interest confirmed by the court. When proceedings are still in progress, the information relating thereto is considered confidential.
The courts can uphold the confidentiality of documents if the party filing them indicates that they contain information of a confidential nature that the party is entitled to preserve according to the Federal Transparency Law.
(Source: General Transparency and Access to Public Information, Arts. 113(11), 116, 120.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Hearings are public. However, there is legal basis to request that hearings be held in private. Such request will be granted considered convenient by the judge.
(Source: Commerce Code, Art. 1080(I); Federal Code of Civil Procedures, Art. 274.)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Final judgments on recognition and enforcement, like final judgments in general, are considered as public information, although parties involved can object to the publication of their personal data.
(Source: Federal Transparency and Access to Public Information Law, Art. 118, and General
Transparency and Access to Public Information Law, Arts. 116 and 120.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
A party may always obtain the recognition of an interim or partial foreign award.
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
When the recognition and enforcement procedure has been concluded and an enforceable resolution has been issued (see Q.10 and Q.11 above).
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
In general, a court only grants or refuses recognition and enforcement of an award as a whole. Nonetheless, the applicant may request and obtain recognition and/or enforcement of only part of the relief granted in the award. The applicant may later request recognition and enforcement of the other parts of the award if not time-barred from doing so.
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
There are no judicial precedents (jurisprudencia) in Mexico on the interpretation or application of Art. V(1)(e) of the New York Convention.
(Source: Commerce Code, Art. 1462(I)(e).)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
Country Rapporteur: Claus von Wobeser