Challenging and Enforcing Arbitration Awards

Last verified on Thursday 27th May 2021

Challenging and Enforcing Arbitration Awards: Mexico

Michelle Carrillo Torres

Litredi SC

Applicable requirements as to the form of arbitral awards

1. Must an award take any particular form?

Mexico

Awards must be rendered in writing and signed by the arbitrator or members of the arbitral tribunal. In arbitration proceedings with more than one arbitrator, Mexican law deems sufficient the signatures of the majority of the members of the arbitral tribunal, provided that the reason for any omitted signature is stated.

The award shall also provide the reasons on which it is based, unless the parties have agreed otherwise, or if the award records the parties’ settlement in the form of an arbitral award on agreed terms.

Mexican law also requires formal requisites of the award, such as stating the date on which it has been issued and the place of arbitration.

Once the award has been rendered, a copy signed by the arbitrators shall be delivered to each party.

Answer contributed by Michelle Carrillo Torres

Applicable procedural law for recourse against an award

2. Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)?

Mexico

The Mexican Commerce Code provides for recourses for correction and interpretation of an award, and for applications for additional awards, within 30 days of receipt of the award by the parties.

Requests for correction of errors in computation, clerical or typographical errors, or any errors of similar nature, may be submitted by the parties; however, the arbitral tribunal may also correct any such errors on its own initiative within the same 30-day period.

The parties may also request the arbitral tribunal to provide an interpretation of a specific section or item of the award.

Applications for an additional award may be made as to claims raised during the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justified, the additional award shall be rendered within 60 days.

Other than the recourses for correction, interpretation and issuance of an additional award, Mexican law does not contemplate the retractation or revision of an award.

Answer contributed by Michelle Carrillo Torres

3. May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

Mexico

Although appeals seek confirmation, overturning or modification of judicial rulings, the setting aside of arbitral awards seeks the nullification thereof, preventing recognition and enforcement. However, Mexican arbitration law considers awards binding and final (unless otherwise agreed by the parties) and does not provide for the availability of appeals against arbitral awards.

Therefore, arbitral awards may not be appealed, unless the parties agree on specific appeal procedures and grounds beforehand. Absent any such agreement, recourse to Mexican courts against an arbitral award may be made only by an application for setting aside.

Answer contributed by Michelle Carrillo Torres

Applicable procedural law for setting aside of arbitral awards

4. Is there a time limit for applying for the setting aside of an arbitral award?

Mexico

An application for the setting aside of an arbitral award must be made within three months of the date on which the award was notified to the parties. In the event that a request has been made for correction or interpretation, or for an additional award, the time limit for applying to the setting aside thereof is three months from the date on which the request has been disposed of by the arbitral tribunal.

Answer contributed by Michelle Carrillo Torres

5. What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?

Mexico

Only arbitral decisions that take the form of an award can be set aside. Courts can also set aside both partial and interim awards.

Answer contributed by Michelle Carrillo Torres

6. Which court has jurisdiction over an application for the setting aside of an arbitral award?

Mexico

Both federal and local first instance civil courts competent in the seat of the arbitration have jurisdiction over applications for recognition and enforcement of domestic arbitral awards.

Owing to the concurrent jurisdiction between federal and local courts, a party filing an application for recognition and enforcement of either a domestic or a foreign award may freely choose one of them.

Answer contributed by Michelle Carrillo Torres

7. What documentation is required when applying for the setting aside of an arbitral award?

Mexico

When applying for the setting aside of an arbitral award, the applicant must submit the original arbitral award or a duly certified copy thereof, a certified copy of the document by which the arbitral award was notified to the applicant and certified copies of any other documents on which the applicant relies to prove the existence of the grounds for the setting aside of the award.

The applicant is required to submit the original documents or certified copies, as well as counterparts or copies for each of the parties against whom the setting aside is sought.

Answer contributed by Michelle Carrillo Torres

8. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

Mexico

If the award or the arbitration agreement is not in Spanish, the party making the application shall also produce certified translations of the complete documents into Spanish, made by an official or sworn translator, duly certified by the Mexican judicial branch or by a diplomatic or consular agent.

Applicants shall produce full translations of the award and the arbitration agreement, and of any other documentation accompanying the application.

Answer contributed by Michelle Carrillo Torres

9. What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Mexico

Other practical requirements relevant to the setting aside of an arbitral award include the following:

  • neither party is required to pay costs or fees to the court;
  • although no binding precedent exists, there are isolated judicial decisions that prevent the parties from obtaining the recovery of legal fees;
  • Mexican courts may not review the merits of the award and may only analyse the existence of limited grounds for the setting aside of an award;
  • any application for the setting aside of an arbitral award before Mexican courts must be fully drafted in Spanish and any accompanying documents must be either originally written in Spanish or submitted with a certified translation into Spanish; and
  • there are no limitations on the length of the submission or on the volume of the documentation filed by the parties.

Answer contributed by Michelle Carrillo Torres

10. What are the different steps of the proceedings?

Mexico

The setting aside of arbitral awards is subject to an adversarial procedure that is triggered by a written application of one of the parties (a special procedure applies to commercial transactions and arbitration). The application must be made before three months have elapsed from the date on which the award was notified to the parties (or from the date on which a request for clarification, interpretation or for the issuance of an additional award was disposed of by the arbitral tribunal).

Once the claim has been admitted, the court will order notification of it to the other party, granting that party 15 days to submit a response. If neither party has submitted evidence and the court does not deem any such evidence necessary, it shall summon the parties for a hearing. If any of the parties has submitted evidence, or the court has deemed that evidence necessary, an evidentiary period of 10 days is granted. Once this 10 day period has elapsed, the hearing takes place and the court’s decision is rendered thereafter.

Answer contributed by Michelle Carrillo Torres

11. Do setting-aside proceedings have suspensive effect? May an arbitral award be recognised or enforced pending the setting-aside proceedings in your jurisdiction?

Mexico

Mexican courts have discretionary powers to adjourn their decision on the recognition and enforcement proceedings pending the outcome of setting-aside proceedings in a different jurisdiction.

Furthermore, Mexican law allows for the setting-aside proceedings and the recognition and enforcement proceedings to be consolidated, to avoid conflicting decisions. The consolidation is possible as long as the hearing on final pleadings has not taken place and provided that both procedures are being conducted in the same jurisdiction.

Answer contributed by Michelle Carrillo Torres

12. What are the grounds on which an arbitral award may be set aside?

Mexico

An arbitral award may be set aside by Mexican courts only if the party making the application furnishes proof that:

  • a party to the arbitration agreement was under some incapacity;
  • the arbitration agreement is not valid under the law to which the parties subjected it, or failing such an agreement, under Mexican law;
  • the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to assert its rights;
  • the award deals with a dispute not contemplated by the arbitration agreement or contains decisions on matters beyond the scope of the arbitration agreement; or
  • the composition of the arbitral tribunal or the arbitration proceedings were not in accordance with the parties’ agreement (unless any such agreement is contrary to Mexican law), or failing such an agreement, was not in accordance with Mexican law.

Additionally, an arbitral award may be set aside if the court finds, on an ex officio basis, that the subject matter of the dispute is non-arbitrable under Mexican law or that the award is contrary to Mexican public policy.

Answer contributed by Michelle Carrillo Torres

13. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?

Mexico

In principle, the decision granting the setting-aside application prevents the award from being recognised and enforced, with extraterritorial effects.

Although no ordinary remedies are available against the decision on the setting-aside application, it may be challenged through the constitutional proceeding known as amparo. The amparo allows the competent courts to review the setting-aside procedure and the merits of the decision rendered therein, entailing a restrictive analysis of human rights violations during the setting-aside, provided, however, that the review of the merits of the arbitral award is not allowed. As a result, the competent court may either confirm or revoke the decision on the setting aside, with final effects.

Answer contributed by Michelle Carrillo Torres

14. Will courts take into consideration decisions rendered in the same matter in other jurisdictions or give effect to them?

Mexico

Mexican courts may take into consideration decisions rendered in the same matter in other jurisdictions, but are not obliged to defer to them.

Answer contributed by Michelle Carrillo Torres

Applicable procedural law for recognition and enforcement of arbitral awards

15. What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

Mexico

The applicable procedural law for the recognition and enforcement of arbitral awards is the Fourth Title (Commercial Arbitration) of the Fifth Book (Commercial Proceedings) of the Mexican Commerce Code. This section of the Commerce Code incorporates the major provisions of the UNCITRAL Model Law.

Furthermore, Mexico is a party to several conventions facilitating recognition and enforcement of arbitral awards, including the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), the Inter-American Convention on International Commercial Arbitration (the 1975 Panama Convention), the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards (the 1979 Montevideo Convention) and the Convention on the Settlement of Investment Disputes between States and National of Other States (the ICSID Convention).

Mexico is also a party to a Bilateral Treaty on the Recognition and Enforcement of Judgments and Arbitral Awards in Civil and Commercial Matters with the Kingdom of Spain.

Answer contributed by Michelle Carrillo Torres

16. Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under Article I(3) of the Convention?

Mexico

Mexico ratified the 1958 New York Convention in 1971, without any reservations. The Convention entered into force on 13 July 1971.

Answer contributed by Michelle Carrillo Torres

Recognition proceedings

17. Is there a time limit for applying for the recognition and enforcement of an arbitral award?

Mexico

The time limit for applying for the recognition and enforcement of an arbitral award is 10 years from the date on which the award was notified. In the event a request for correction and interpretation of an award, or for the issuance of an additional award, has been made, the time limit for applying for the setting aside is 10 years from the date on which such a request has been disposed of by the arbitral tribunal.

Answer contributed by Michelle Carrillo Torres

18. Which court has jurisdiction over an application for recognition and enforcement of an arbitral award?

Mexico

The federal and local first instance civil courts in the domicile of the party against which the application is filed, or in the place where the assets are located, are the competent courts.

Owing to the concurrent jurisdiction between federal and local courts, a party filing an application for recognition and enforcement of either a domestic or a foreign award may freely choose one of them.

Answer contributed by Michelle Carrillo Torres

19. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

Mexico

Federal and local first instance civil courts have jurisdiction over an application for recognition and enforcement of domestic arbitral awards, provided that the seat of the arbitration is located within the territorial jurisdiction of the court.

Federal and local first instance civil courts also have jurisdiction over an application for recognition and enforcement of foreign awards, when the domicile of the party against whom enforcement is sought is located within the territorial jurisdiction of the court. If that party’s domicile is elsewhere, the court’s jurisdiction will be determined based on the location of the assets against which enforcement is sought.

The specific identification of assets within the jurisdiction of the court is not a formal procedural prerequisite for the admissibility of the application. However, the identification of assets is a requirement at the enforcement stage, once a favourable decision on enforcement has been obtained and the applicant has to identify the assets that will be effectively attached or seized. Thus, at this procedural stage, the identification of assets is necessary for the actual enforcement to be made.

However, if the applicant has no certainty about the existence and location of the assets subject to enforcement, the party against whom enforcement is sought would most likely challenge the jurisdiction of the court during the adversarial procedure. In the event of jurisdictional challenges, the applicant would have the burden of proof regarding the existence and location of any such assets within the court’s territorial jurisdiction. Therefore, it is in the applicant’s best interest to have certainty about the existence and location of the assets within the jurisdiction of the court, at the moment of filing the application for recognition and enforcement, to ensure the final enforcement will be effective and to avoid jurisdictional challenges by the other party.

Answer contributed by Michelle Carrillo Torres

20. Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

Mexico

The recognition and enforcement of arbitral awards are conducted through the special procedure for commercial transactions and arbitration, governed by Articles 1472 to 1476 of the Commerce Code. This procedure is adversarial and requires the service and participation of the party against whom the award is invoked.

The proceedings are triggered by a party’s written application. Once the claim has been admitted, the court will order notification of it to the other party, granting that party 15 days to submit a response. If neither party has submitted evidence and the court does not deem any such evidence necessary, it shall summon the parties for a hearing. If any of the parties has submitted evidence, or the court has deemed that evidence necessary, an evidentiary period of 10 days is granted. Once this 10 day period has elapsed, the hearing takes place and the court’s decision is rendered thereafter.

Answer contributed by Michelle Carrillo Torres

21. What documentation is required to obtain recognition?

Mexico

The party seeking the recognition and enforcement of an arbitral award must file an application in writing, submitting with it the authenticated original award or a certified copy thereof and the original arbitration agreement or a duly certified copy thereof. If the award, the arbitration agreement or any of the accompanying documents is not written in Spanish, the applicant shall also provide certified translations made by a sworn translator.

Mexican courts have recently issued non-binding precedents interpreting the scope of the authentication requirement. In practice, however, submission of the original documents or certified copies thereof has generally been sufficient for the recognition and enforcement proceedings to proceed.

The applicant is required to file the original documents to the court, as well as a counterpart or copy for each of the parties against whom the enforcement is sought.

Answer contributed by Michelle Carrillo Torres

22. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?

Mexico

If the award or the arbitration agreement is not in Spanish, the party making the application shall also produce certified translations of the complete documents into Spanish. These translations shall be made by an official or sworn translator, duly certified by the Mexican judicial branch or by a diplomatic or consular agent.

Applicants shall produce full translations of the award and the arbitration agreement, and of any other documentation accompanying the application for recognition and enforcement.

Answer contributed by Michelle Carrillo Torres

23. What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Mexico

Other practical requirements relevant to the recognition and enforcement of arbitral awards include the following:

  • the parties are not required to pay costs, fees or duties to the court;
  • recognition and enforcement of an award may be refused following application by the party against whom the application is filed. Therefore, the onus is on that party to prove the existence of grounds to deny the recognition and enforcement, within the frame of the adversarial procedure regulated under Articles 1472 to 1476 of the Commerce Code;
  • Mexican courts may not review the merits of an award and their review is limited to the analysis of the grounds for refusal of recognition and enforcement;
  • although no binding precedent exists, there are isolated judicial decisions that prevent the parties from obtaining the recovery of legal fees arising from the recognition and enforcement proceedings; and
  • there are no limitations on the length of the submission or on the volume of the documentation filed by the parties.

Answer contributed by Michelle Carrillo Torres

24. Do courts recognise and enforce partial or interim awards?

Mexico

The enforcement of partial or interim awards is subject to the same procedure, requirements and statute of limitations as final awards and may be recognised and enforced regardless of their interim nature.

Provisional measures granted by arbitral tribunals are also subject to the special procedure for commercial transactions and arbitration to obtain recognition and enforcement (governed by Articles 1472 to 1476 of the Commerce Code).

Answer contributed by Michelle Carrillo Torres

25. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under Article V of the New York Convention?

Mexico

Recognition and enforcement of an arbitral award may be refused following application by the party against whom the award is invoked, provided that the party furnishes proof that:

  • a party to the arbitration agreement was under some incapacity;
  • the arbitration agreement is not valid under the law to which the parties subjected it or, failing any such agreement, under Mexican law;
  • the party against whom enforcement is sought was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to assert its rights;
  • the award deals with a dispute not contemplated by the arbitration agreement or contains decisions on matters beyond the scope of the arbitration agreement, provided it is possible to separate the decisions on matters;
  • the composition of the arbitral tribunal or the arbitration procedure was not in accordance with the parties’ agreement, or failing such an agreement, was not in accordance with the law of the seat; and
  • the award is not yet binding on the parties or has been set aside or suspended by a competent court of the country in which, or under the law of which, the award was rendered.

As stated in Article V of the New York Convention, the Mexican Commerce Code grants Mexican courts the power to refuse enforcement if they find, on an ex officio basis, that the subject matter of the dispute is non-arbitrable under Mexican law or that the award is contrary to Mexican public policy.

The aforementioned grounds for refusal of enforcement applied by Mexican courts, and provided under Article 1462 of the Commerce Code, are substantially the same as those provided under Article V of the New York Convention.

Answer contributed by Michelle Carrillo Torres

26. What is the effect of a decision recognising an arbitral award in your jurisdiction?

Mexico

In principle, a decision recognising an award has the effect of rendering the award immediately enforceable.

Although no ordinary remedies are available against a decision on the recognition and enforcement of an award, the decision may be challenged through a constitutional proceeding (amparo). The amparo exclusively allows the competent courts to review the recognition and enforcement procedure and the merits of the decision rendered therein. Therefore, it entails a restrictive analysis of human rights violations during the recognition and enforcement procedure, and the courts are prevented from reviewing the merits of the arbitral award. As a result, the competent court may either confirm or revoke the decision on the recognition and enforcement of the award, with final effects.

The amparo has suspensive effects, entailing the possibility to suspend the enforcement of the judgment that is subject to the amparo. However, the parties must request the court to issue a specific decision suspending the effects of the decision and it usually requires the posting of sufficient security, at the court’s discretion.

No challenges are available to third parties.

Answer contributed by Michelle Carrillo Torres

27. What challenges are available against a decision refusing recognition in your jurisdiction?

Mexico

There are no ordinary remedies against a decision refusing to recognise an arbitral award. The only challenging mechanism available is the constitutional proceeding known as amparo, which entails a restrictive analysis of human rights violations during the recognition and enforcement procedure.

Amparo proceedings entail two instances. The first is conducted before a district judge. Against the decision rendered in the first instance, a revision is available before a collegiate court. The ruling issued in the revision of the amparo is final and no further challenges or remedies are available against it.

Answer contributed by Michelle Carrillo Torres

28. What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

Mexico

Mexican courts have discretionary powers to adjourn their decision on the recognition and enforcement proceedings pending the outcome of annulment proceedings in the seat of the arbitration. If the adjournment is deemed proper, the court may also, upon application of the party claiming recognition or enforcement of the award, order the other party to provide sufficient security.

In a decision of 2018, a Mexican court granted an application to adjourn its decision on enforcement proceedings, also ordering suspension of the enforcement proceedings altogether. The decision to suspend the enforcement proceedings was thereafter overturned, based on the fact that the conducting of legal proceedings is a matter of Mexican public policy and access to justice cannot be suspended. Therefore, only the decision adjourning the decision on the recognition and enforcement of the award was withheld.

Once a decision on the annulment of an award has been issued at the seat of the arbitration, Mexican courts may refuse recognition and enforcement of the award, but are not legally bound to do so.

Answer contributed by Michelle Carrillo Torres

29. If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

Mexico

If the adjournment is deemed proper, the court may, following an application by the party applying for the recognition and enforcement of the award, order the defendant to post sufficient security.

Mexican courts have discretion to determine the form and amount of the security. In practice, the Mexican judiciary tends to order bonds in an amount that is usually equal to the applicable interest rate on the total sum of the award, on an annual basis. Generally, the courts take into consideration the potential damage to be caused by the delay in the enforcement proceedings; this damage is determined discretionally by the courts case by case.

Answer contributed by Michelle Carrillo Torres

30. Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

Mexico

Recognition and enforcement of an award may be refused if the party against whom the award is invoked furnishes proof that the award was set aside at the seat of the arbitration. Thus, Mexican courts have discretionary powers to grant the recognition and enforcement of an award, even if it has been set aside at the seat of the arbitration.

However, there are no published precedents on the recognition and enforcement in Mexico of an award set aside in another jurisdiction.

There are no specific provisions in Mexican law for regulating challenges against decisions to recognise an arbitral award, when the decision to set aside is rendered afterwards in the seat of the arbitration. If the decision to set aside the award is rendered in the seat after the recognition and enforcement proceedings have finalised in Mexico and a final ruling has been issued in the amparo proceedings, then there would be no remedies available.

However, if the decision to set aside the award is rendered after the recognition and enforcement has been ordered in Mexico, but the amparo proceedings are still pending, the foreign decision setting aside the award could be invoked in the amparo proceedings as supervening evidence. It is relevant to note that, although it is legally and procedurally possible to invoke the decision of the foreign court as supervening evidence, the outcome would be unpredictable, as there are no specific legal provisions governing the issue and no judicial precedents exist.

Answer contributed by Michelle Carrillo Torres

Service

31. What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?

Mexico

In all cases, service of judicial documents is performed by a duly authorised court officer.

Once an application for the recognition and enforcement of an award has been received and admitted, the court orders the serving of summons to the defendant. Service of summons is made at the address of the defendant, which must be provided by the claimant in the application. Service of summons is performed personally by the authorised court officer.

If the domicile of the defendant is unknown, service of process shall be made by publishing the first notification in a national newspaper, and in the local newspaper in three consecutive issues.

In their first briefs, the parties are required to provide the court with an address for the purposes of notification of judicial documents. Thereafter, service of judicial documents is made in the aforementioned domiciles, or any new address that may be provided by the parties to the court in the course of the proceedings.

Notifications that do not require to be personally made by the court officer may be performed by other methods, including publication in the judicial newsletter, in the lists of the court, by judicial edict, by certified mail and certified telegraph.

Mexican law does not contain provisions governing the service of extrajudicial documents. Therefore, any such documents are usually served by the parties, following any contractual rules or formalities that may be applicable to notices under an existing agreement. In any case, service of extrajudicial documents is not binding for the purposes of the recognition and enforcement proceedings, as all service of documents must be done by the court’s personnel, under the applicable procedural rules.

Any documents served by Mexican courts must be either originally drafted in Spanish or accompanied by a certified translation made by a sworn translator.



Answer contributed by Michelle Carrillo Torres

32. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction?

Mexico

Service of judicial documents outside Mexico is performed through rogatory letters or letters of request by the Mexican Foreign Service and with the cooperation of the competent foreign authorities.

Service of extrajudicial documents abroad is not governed by Mexican law and is therefore not subject to specific requirements.

Any documents served to a defendant outside Mexico must be either originally drafted in Spanish or accompanied by a certified translation made by a sworn translator.

Answer contributed by Michelle Carrillo Torres

Identification of assets

33. Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction?

Mexico

The ownership status of immovable property is publicly available in the local public registries of property and in the national Public Registry of Commerce.

However, there are no publicly available databases or registries allowing the identification of movable property or intangible assets.

Answer contributed by Michelle Carrillo Torres

34. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Mexico

Mexican law does not regulate proceedings allowing for the disclosure of information about an award debtor.

Answer contributed by Michelle Carrillo Torres

Enforcement proceedings

35. What kinds of assets can be attached within your jurisdiction?

Mexico

There is no restriction regarding the kinds of assets that can be subject to attachment. Attachment can cover movable, immovable, tangible and intangible assets.

Answer contributed by Michelle Carrillo Torres

36. Are interim measures against assets available in your jurisdiction?

Mexico

Since Mexican law does not establish any distinctions or limitations regarding the purpose of the interim measures that can be granted, interim measures against assets are available.

Court-ordered interim measures are available before and during the arbitration proceedings, and during the recognition and enforcement procedures. Mexican courts have discretionary powers to grant interim measures, including interim measures against assets.

Mexican law also allows for interim measures against assets to be ordered by arbitral tribunals during the course of arbitration. Any such interim measure shall be recognised as binding by the competent court and enforced following application by the parties. Therefore, interim measures against assets granted by arbitral tribunals can also be used for the purposes of guaranteeing the enforcement of an arbitral award, when there are exceptional circumstances putting into question the ability of one of the parties to honour the award.

In a decision rendered in August 2019, an arbitral tribunal granted an interim measure against assets of one of the parties, deeming that it had taken steps to provoke its own insolvency and thus to render the award unenforceable. An application for the recognition and enforcement of the interim measure against assets ordered by the arbitral tribunal has been filed with the Mexican courts for the purposes of securing the recognition and enforcement of the future award, while the arbitration proceedings are still pending. The decision on the recognition and enforcement of the interim measure is currently pending resolution.

As a general rule, interim measures against assets owned by sovereign states are not available, unless the state has expressly consented to prejudgment or post-judgment measures and thereby waived jurisdictional immunity, or if the assets are used other than for non-commercial government purposes and are located in the Mexican territory. Furthermore, state immunity cannot be invoked regarding disputes or proceedings arising out of a commercial transaction, unless the parties to the commercial transaction have expressly agreed otherwise.

Interim measures against assets owned by the Mexican state, or by state entities, are not available, as they have immunity and their assets are not subject to enforcement or seizure. In recent cases, challenges to the constitutionality of the provisions granting immunity have been raised, arguing that public entities acting as parties to commercial contracts should not have any such immunity over their assets. However, to date, no binding criterion has been issued and the general rules for state immunity are still applicable.

Answer contributed by Michelle Carrillo Torres

37. What is the procedure to apply interim measures against assets in your jurisdiction?

Mexico

Interim measures against assets granted by arbitral tribunals are recognised as binding and enforced by Mexican courts following application by one of the parties and an adversarial procedure. The recognition and enforcement of provisional measures ordered by an arbitral tribunal may be refused only on limited grounds. For the recognition and enforcement of provisional measures, including those against assets, the Commerce Code provides for the same adversarial procedure as that contemplated for the recognition and enforcement and setting aside of arbitral awards (there is a special procedure for commercial transactions and arbitration). The procedure is triggered by a written application. Once the claim has been admitted, the court will order notification of it to the other party and will grant that party 15 days to submit a response. Both parties have the right to submit evidence within an evidentiary period of 10 days, after which a hearing takes place. The court’s decision is rendered after the hearing.

Court-ordered interim measures against assets while the arbitration proceedings are pending are also subject to the aforementioned adversarial procedure.

Interim measures, including those against assets, may also be requested at the outset of the procedure for the recognition and enforcement of arbitral awards, on a preliminary and temporary basis. Mexican court precedents have established that these provisional measures may be granted preliminarily and on an ex parte basis, once the application for the recognition and enforcement of the arbitral award is admitted. During the development of the adversarial procedure for the recognition and enforcement of the award, the party against whom the interim measure has been ordered may challenge the decision that granted the provisional measure. In these circumstances, interim measures become effective at the outset of the proceedings and remain in force until a final decision is rendered by the court.

Answer contributed by Michelle Carrillo Torres

38. What is the procedure for interim measures against immovable property within your jurisdiction?

Mexico

Mexican law does not establish a specific procedure to obtain interim measures against immovable property. Therefore, immovable property is subject to the special procedure for commercial transactions and arbitration that governs applications for interim measures in general.

Once a final decision has been rendered regarding interim measures against immovable property, the court generally orders that the attachment of the assets be registered in the Public Registry of Property as an encumbrance.

Answer contributed by Michelle Carrillo Torres

39. What is the procedure for interim measures against movable property within your jurisdiction?

Mexico

Mexican law does not establish a specific procedure to obtain interim measures against movable property. Therefore, movable property is subject to the special procedure for commercial transactions and arbitration that governs applications for interim measures in general.

Answer contributed by Michelle Carrillo Torres

40. What is the procedure for interim measures against intangible property within your jurisdiction?

Mexico

Mexican law does not establish a specific procedure to obtain interim measures against intangible property. Therefore, intangible property is subject to the special procedure for commercial transactions and arbitration that governs applications for interim measures in general.

Answer contributed by Michelle Carrillo Torres

41. What is the procedure to attach assets in your jurisdiction?

Mexico

Once a final decision has been obtained for the recognition and enforcement of an award, for the recognition and enforcement of a provisional measure against assets, or when a court-ordered provisional measure against assets has been issued, the competent court issues an order for the attachment of the assets.

The court’s order regarding the attachment of assets must be presented to the court officer, who will effectively perform the attachment. The procedure to attach assets is not ex parte.

Answer contributed by Michelle Carrillo Torres

42. What is the procedure for enforcement measures against immovable property within your jurisdiction?

Mexico

Once the attachment of immovable property has been ordered, the judge generally orders that the attachment of the assets to be registered in the Public Registry of Property as an encumbrance.

Answer contributed by Michelle Carrillo Torres

43. What is the procedure for enforcement measures against movable property within your jurisdiction?

Mexico

Attachments of movable property require only an attachment order of the competent court. The attachment is performed by a court officer, as per the instructions of the court. The court officer indicates that the movable property is under judicial attachment and hands over the custody and possession of the assets to a person designated by the creditor.

Answer contributed by Michelle Carrillo Torres

44. What is the procedure for enforcement measures against intangible property within your jurisdiction?

Mexico

The procedure for attachment of intangible property depends on the specific nature of the intangible asset, the legal provisions that govern the asset and whether or not the attachment can be recorded in a specific registry.

The attachment of intellectual property rights, patents and trademarks may be registered at the Mexican Intellectual Property Institute.

Answer contributed by Michelle Carrillo Torres

45. Is it possible in your jurisdiction to attach bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible in your jurisdiction to attach the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

Mexico

Bank accounts opened in a branch or subsidiary of a foreign bank can be attached, provided that the assets are located in Mexico. Conversely, bank accounts opened in a branch or subsidiary of a domestic bank located abroad cannot be attached by Mexican courts.

Answer contributed by Michelle Carrillo Torres

Enforcement against foreign states

46. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

Mexico

There are no rules specifically governing the recognition and enforcement of arbitral awards against foreign states.

Answer contributed by Michelle Carrillo Torres

47. May award creditors apply interim measures against assets owned by a sovereign state?

Mexico

Mexico is a party to the United Nations Convention on Jurisdictional Immunities of States and Their Property, which was signed on 25 September 2006 and ratified on 29 September 2015, with no declarations or reservations. The Convention provides for immunity from pre-judgment measures of constraint, such as attachment of assets against property of a sovereign state, unless the state has expressly consented to such measures or allocated property for the satisfaction of the claim.

Answer contributed by Michelle Carrillo Torres

48. What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?

Mexico

Mexican law does not regulate specific procedures for service to a foreign state. Any such notifications are performed through diplomatic channels.

Answer contributed by Michelle Carrillo Torres

49. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?

Mexico

Mexico is a party to the United Nations Convention on Jurisdictional Immunities of States and Their Property, which was signed on 25 September 2006 and ratified on 29 September 2015, with no declarations or reservations. The Convention establishes, as a general principle, that a state enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another state.

Nevertheless, enforcement on assets belonging to a foreign state can be ordered in the following exceptional circumstances:

  • when express consent has been given by the foreign state regarding pre-enforcement and post-enforcement measures;
  • if it has been established that the property is located in Mexico and is used or intended for use other than for non-commercial government purposes; or
  • unless expressly agreed otherwise, if a foreign state enters into an agreement in writing with a Mexican individual or legal person, consenting to submit to arbitration differences relating to a commercial transaction, that foreign state cannot invoke immunity from jurisdiction before a Mexican court, regarding the validity, interpretation or application of the arbitration agreement, the arbitration procedure or the recognition and enforcement, or the setting aside of the arbitral award.

Answer contributed by Michelle Carrillo Torres

50. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

Mexico

According to the United Nations Convention on Jurisdictional Immunities of States and Their Property, to which Mexico is a party, a foreign state may waive immunity by consenting to the exercise of jurisdiction by Mexican courts. This consent may be given by international agreement, in a written contract, by a declaration before the court or by a written communication in a specific proceeding. Waiver of immunity to jurisdiction does not entail in itself consent to pre-judgment or post-judgment measures, which require additional express consent.

Immunity regarding pre-judgment and post-judgment measures of constraint, such as attachment against property, may be waived by providing express consent to those measures, which may be given by international agreement, by an arbitration agreement or in a written contract, by a declaration before the court, or by allocating property for satisfaction of the claim.

Furthermore, post-judgment measures of enforcement against assets of a foreign state may be made if it has been established that the property is specifically in use or intended for use by the foreign state other than for non-commercial government purposes and is located within the Mexican territory.

Answer contributed by Michelle Carrillo Torres

51. Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?

Mexico

It is not possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state in Mexico.

Answer contributed by Michelle Carrillo Torres

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