Commercial Arbitration

Last verified on Tuesday 11th May 2021

Commercial Arbitration: Mexico

Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Ruiz-Silva Abogados, SC

Infrastructure

1. Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?

Mexico

Mexico is party to the New York Convention. On 14 April 1971, Mexico ratified the Convention on the Recognition on Enforcement of Foreign Arbitral Awards (the 1958 New York Convention). Mexico did not make any reservation; this in line with its position before the international community of a pro-arbitration.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

2. Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?

Mexico

Mexico is also party to the Panama Convention, on 15 February 1978, Mexico ratified the Inter-American Convention of International Commercial Arbitration (the 1975 Panama Convention). Likewise, Mexico is party to the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards (the 1979 Montevideo Convention), which Mexico ratified on 11 February 1987, Mexico also entered into a bilateral treaty: the Convention between Mexico and Spain on Recognition and Enforcement of Court Judgments and Arbitral Awards in Civil and Commercial Maters, which was effective in 1992.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

3. Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?

Mexico

Mexico adopted the UNCITRAL Model Arbitration Law on 22 July 1993 by amending the Mexican Commerce Code to include the Mexican Arbitration Law in its Book Fifth, Title Fourth. Pursuant to article 1415, Mexican Arbitration Law apply to national and international commercial arbitration whenever the seat of arbitration is Mexico.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

4. What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?

Mexico

The main Mexican Arbitral Institutions are the Arbitration Center of Mexico (CAM) and the Mediation and Arbitration Commission of the National Chamber of Commerce (CANACO).

In the case that an agreement by the contracting parties has not been reached, both contemplate provisions for appointing arbitrators in said cases.

In the CAM Rules of Arbitration (article 14), if the parties fail to nominate an arbitrator, the arbitrator shall be appointed by the General Council. Likewise, in the CANACO Rules for Commercial Arbitration (article 8), unless agreed between the parties, arbitrators will be designated by the Commission. Both institutions act as appointing authorities.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

5. Can foreign arbitral providers operate in your jurisdiction?

Mexico

Yes, in Mexico all International Institutions can administer local and international arbitrations. The Mexican Commerce Code does not distinguish between institutions with and without physical presence, nor it provides dispositions that govern the arbitral institutions.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

6. Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with, and supportive of, the law and practice of international arbitration?

Mexico

In Mexico, there are no specialist arbitration courts. Pursuant to article 1422, when judicial intervention is required in a specific arbitration matter, the federal or common lower court judges of the place where the arbitration is carried out will be competent. As for familiarity and support for the practice, Mexican judges have a long-standing policy in favour of arbitration, Mexican courts have understood the guiding principles behind the UNCITRAL Model Law and have applied with reasonable consistency since its adoption by the Mexican Congress.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Agreement to arbitrate

7. What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?

Mexico

Pursuant to article 1423 of the Mexican Arbitration Law, the arbitration agreement shall be in writing and shall be contained in a document signed by the parties, or in an exchange of letters, telex, telegrams, and other means of communications in which the agreement is included. The arbitration agreement can also consist of an exchange of statement of claim and defence in which one party alleges the existence of an agreement and the other party does not deny it. Furthermore, an arbitration agreement is enforceable whenever there is a reference in a contract to other document that contains an arbitral clause in writing, provided that the reference is clear as to make that clause part of the contract.

As for future disputes, any dispute can be covered if they don’t fall in a non-arbitral category and as long as the parties have agreed on the resolution to be reached by arbitration.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

8. Are any types of dispute non-arbitrable? If so, which?

Mexico

Yes, in Mexico there are some subject matters excluded from arbitration. National courts have exclusive jurisdiction in matters related (i) to land and water located in national territory, including subsoil, airspace, territorial sea, continental shelf, (ii) resources of the exclusive economic zone or related to sovereign rights of said zone, (iii) acts of authority or acts related to the internal regime of the state and of local and federal entities.

Likewise, public works and public purchases executed between public entities and individuals can be subject to arbitration. However, the Law of Public Works and Related Services (article 98) and Law of Procurement, Leasing and Services for the Public Sector (article 80), states that the disputes arising out of administrative rescission and early termination are excluded from arbitration.

The Public-Private Partnerships Law (article 139) allows arbitration but establishes that revocation of concessions, authorisations and acts of authorities are not subject to arbitration.

The Hydrocarbons Law foresees arbitration for contracts for oil exploration and extraction but excludes administrative rescission from arbitration (article 21).

Regarding industrial property matters, not all disputes may be subject to arbitration, but only commercial and civil disputes derived from the application of the Protection to the Industrial Property Federal Law that just affect individual interests may be subject to arbitration (article 407). In connection to telecommunications matters, pursuant to the Mexican Telecommunications and Broadcasting Law, disputes between the concessionaires and the Federation, states and municipalities are of exclusive jurisdiction for specialist courts (article 5); however, disputes between concessionaires and licensed holders can be arbitrable. Anti-trust matters are also not arbitrable under Mexican law.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

9. Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?

Mexico

The Mexican Arbitration Law does not foresee this scenario. However, considering that the cornerstone of arbitration is the consent, for a party to be bound to arbitration it needs to be proven that such party consented to the arbitration even though the party did not sign the arbitration agreement.

While there is no specific indication in the Mexican Arbitration Law regarding participation of third parties in arbitration, practices have been generated in some areas, such as joinder and cross-claims mainly to include third parties.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

10. Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?

Mexico

The Mexican Arbitration Law does not provide consolidation of multiple arbitral proceedings. It may operate whenever the parties have expressly agreed to it or by agreeing to the application of specific rules of arbitration that contain dispositions governing the consolidation of arbitrations. For example, article 10 of the ICC Rules of Arbitration.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

11. Is the "group of companies doctrine" recognised in your jurisdiction?

Mexico

The Mexican Arbitration Law does not foresee this scenario, nevertheless, it is possible to extend an arbitration agreement to a non-signatory party by means of different doctrines, which includes the ‘group of companies doctrine’ and ‘piercing the corporate veil’.

When alleging the ‘group of companies doctrine’, it must be proven that the parent or subsidiary company has consented the arbitration agreement, either for active participation in the negotiation of the contract or in the execution of the contract.

Likewise, Mexican tribunals have recognised that it is possible to extend the arbitration agreement to a non-signatory party by transmission or extension. By transmission, in cases in which the contract containing the arbitration agreement has been transferred to a third party (ie, assignment of a contract). By extension, in cases in which the effects of a contract containing the arbitration agreement are extended to third parties (ie, provision in favour of third parties). The most frequent examples for extending the arbitration agreement are the “alter ego", “group of companies", “piercing the corporate veil" theories and joint ventures.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

12. Are arbitration clauses considered separable from the main contract?

Mexico

Yes, pursuant to the Commerce Code, an arbitration clause included within the wording of a contract shall be deemed as an agreement independent from the other stipulations of the contract. In the event that the arbitral tribunal declares the main contract to be null and void, this shall not entail the nullity of the arbitration clause (article 1432, Commerce Code).

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

13. Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunals jurisdiction and competence?

Mexico

Given that Mexico adopted the UNCITRAL Model Arbitration Law, Mexican Arbitration Law recognises the competence-competence principle. Article 1432 of the Commercial Code states that the arbitral tribunal may rule on its own competence, including any objections with respect to the existence or validity of the arbitration agreement.

Mexican courts respect such principle and pursuant to article 1432 of the Commerce Code courts only intervene, upon request of a party, in cases in which the arbitral tribunal has ruled, as a preliminary matter, that the Arbitral Tribunal is competent to solve the dispute. The ruling of the national court is not subject to appeal.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

14. Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?

Mexico

When drafting an arbitration clause with Mexico as seat of arbitration or as place of enforcement, it is important to bear that the terms of the arbitration agreement shall be respected and that according to Mexican Law there are some matters excluded from arbitration, as those matters referred to in answer to question 8.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

15. Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?

Mexico

In Mexico, Institutional International Arbitration is quite more common than ad hoc procedures. Article 1417 expressly recognises the power of the parties to freely decide the arbitral institution of their choice and the Mexican Commerce Code does not distinguish between institutions with or without physical presence, nor it provides dispositions that govern the arbitral institutions. UNCITRAL Rules are commonly used in ad hoc international arbitrations.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

16. What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

Mexico

There are no dispositions under the Mexican Arbitration Law governing multi-party arbitration agreements. However, when drafting an arbitration agreement in multi-party contracts or related contracts it is worth noting that the rules that deal with joinder and consolidation of the different arbitration rules. The arbitration agreement clause contained in the different contracts shall be similar or compatible between them. It is suggested that the parties shall express their consent to joinder or consolidation according to the corresponding arbitration rules agreed by the parties.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Commencing the arbitration

17. How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

Mexico

According to article 1437 of the Mexican Arbitration Law, unless parties have agreed otherwise, the arbitration proceedings on a dispute will be deemed to have started on the date the defendant has received the claim. Furthermore, article 1439 of the Mexican Arbitration Law establishes that within the term agreed by the parties or the one determined by the arbitral tribunal, claimant shall express the fact in which the claim is based, the contentious points and the request he is claiming. Therefore, the limitation periods of which parties should be aware depends on the agreement of the parties.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Choice of law

18. How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

Mexico

Pursuant to article 1445 of the Mexican Arbitration Law, the arbitral tribunal shall decide the dispute in accordance with the substantive law agreed by the parties. Any designation of the law or legal system of a given state shall be construed, unless otherwise expressed, as directly referring to the substantive law of that state and not to its conflict of laws rules.

In absence of party agreement regarding the applicable law to the substance of the dispute, the arbitral tribunal will decide which substantive law will apply, considering the characteristics and connections of the case.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Appointing the tribunal

19. Does the law of your jurisdiction place any limitations in respect of a partys choice of arbitrator?

Mexico

Under the Mexican Arbitration Law, there are no limitations in respect of a party´s choice of arbitrator. Pursuant to article 1428 of the Mexican Arbitration Law, the arbitrator should be independent and impartial during the arbitral procedure.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

20. Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?

Mexico

No, there is no specific requirement applicable to arbitrators participating in arbitrations in which the seat of arbitration is Mexico or in hearings held in Mexico. Moreover, article 1427 of the Mexican Arbitration Law disposes that the nationality of a person shall not be an obstacle for acting as an arbitrator, unless otherwise agreed by the parties. The Mexican Arbitration Law applies equally to both national and international arbitration.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

21. How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?

Mexico

Pursuant to article 1426 of the Mexican Arbitration Law, parties can freely determine the number of arbitrators. Failing such determination, the number of arbitrators should be one.

In accordance with article 1427 parties are free to agree on a procedure of appointing the arbitrators. Failing such agreement, in the case of a sole arbitrator, the parties shall jointly designate the arbitrator. If not possible, any party may request the court to appoint the sole arbitrator.

In arbitration with three arbitrators (arbitral tribunal), each party shall appoint an arbitrator and the two arbitrators will jointly designate the third arbitrator. If one of the parties has not appointed an arbitrator, or in the event that the two arbitrators designated by the parties do not agree on the third arbitrator, any party can request the court to make the corresponding appointment.

In the case of a request to the court to appoint an arbitrator in absence of an appointment by a party, the request shall be made within 30 days from the date in which the party was requested to appoint the arbitrator. In case of a request to the court to appoint the third arbitrator, the request shall be made within 30 days from the date of appointment of the designated arbitrators.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

22. Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?

Mexico

Mexican Arbitration Law does not afford immunity to arbitrators. In 2011, the Mexican Arbitration Law was amended. As a result of this amendment, article 1480 of the Mexican Arbitration Law provides that the arbitral tribunal is responsible for damages caused by the provisional measures rendered by the arbitral tribunal.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

23. Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

Mexico

Mexican law does not foresee a specific form of assurance of arbitrators’ fees. Given that cornerstone of arbitration in Mexico is the agreement of the parties, the matter of securing payment of arbitrators’ fees shall be addressed during the arbitration proceedings. However, the advance on costs system ensures that the arbitration will proceed once the corresponding fees and expenses are covered. Article 1456 of the Mexican Arbitration Law grants the arbitral tribunal the power to request an advance on fees and expenses. A similar disposition may be found in the rules of arbitration of different institutions.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Challenges to arbitrators

24. On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

Mexico

Article 1428 of the Mexican Arbitration Law establishes that an arbitrator can only be challenged if there are justifiable doubts about his impartiality or independence, or if that person does not possess the qualifications agreed by the parties. Article 1429 of the same law allows parties to freely agree on the procedure for challenging an arbitrator. If party failed to agree so, the party challenging an arbitrator shall file, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance rising doubts of arbitrator’s impartiality or independence, a written statement of the reasons for the challenge.

Therefore, courts shall attend any request to disqualify an arbitrator if such request is made in accordance with the parties’ agreement or the dispositions of the Mexican Arbitration Law.

The IBA Guideline of Conflicts of Interest in International Arbitration will only be applicable whenever the parties agree so. However, such guidelines are commonly taken into account.  

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Interim relief

25. What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

Mexico

In Mexico, both the courts and the arbitral tribunal enjoys broad powers to grant interim relief in an arbitration proceeding. Article 1433 of the Mexican Arbitration Law provides that otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures. Although Mexican jurisdiction does not include all the provisions found on the UNCITRAL Model Arbitration Law related to the interim measures, Mexico neither included provisions defining the types of interim measures that an arbitral tribunal may grant. Therefore, arbitral tribunal have complete discretion in granting all types of measures, such as conservatory, preliminary and interim measures. Moreover, judges enjoy of the same powers according to articles 1425 and 1478 of the Mexican Commerce Code.

Furthermore, in 2011, the Mexican Arbitration Law was amended to add a section that addresses the enforcement of measures granted by arbitral tribunals. Article 1479 of the Mexican Arbitration Law states that interim or provisional relief granted by arbitral tribunals are binding upon the parties and must be recognised and enforced unless the court is allowed to refuse such recognition according to article 1480. Article 1470 of the Mexican Arbitration Law establishes a summary proceeding for the recognition and enforcement of the interim measures granted by the arbitral tribunal.

A party that obtained an interim or provisional relief from the arbitral tribunal shall file a request before the corresponding judge. After the process of service to the defendant, the latter shall present its answer within the following 15 days (article 1473). If proofs were offered, there be a probationary period of 10 days (article 1475). After three days, a hearing for closing arguments shall take place (1474) and afterwards, the judge shall issue his or her ruling (1476).  

Although judges have full discretion when granting arbitration interim relief, judges shall bear in mind that such measures are aimed to support arbitration. Despite this circumstance, some anti-suit injunctions have been granted enjoining arbitral proceeding from going forward.

In one case, a party challenged the anti-suit before a Federal Circuit Court that unanimously resolved that the order suspending the arbitration was illegal. The Circuit Court interpreted that article 1424 of the Mexican Arbitration Law prevented the courts from suspending an arbitration.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

26. Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

Mexico

The Mexican Arbitration Law does not foresee specifically the power of the courts or tribunal to order a party to provide security for costs. However, considering the full discretion of both judges (article 1425) and arbitrators (article 1433) when granting interim measures, it is possible for them to grant such measures. Likewise, some arbitration rules provide the arbitrators the power to grant security for cost either by an interpretation of their rules or by an express provision. For example, article 28 (1) of the ICC Rules of Arbitration states that the arbitral tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. Article 25 (2) of the Rules of Arbitration of the London Court of International Arbitration serves as an example of an express provision granting this power to the arbitrators: the Arbitral Tribunal shall have the power upon the application of a party, after giving all other parties a reasonable opportunity to respond to such application, to order any claiming, counterclaiming or cross-claiming party to provide or procure security for Legal Costs and Arbitration Costs by way of deposit or bank guarantee or in any other manner and upon such terms as the Arbitral Tribunal considers appropriate in the circumstances.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Procedure

27. Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

Mexico

Under the Mexican Arbitration Law, there are no mandatory rules governing the conduct of the arbitration. Article 1435 of the Mexican Arbitration Law states that in absence of an agreement by the parties, arbitrators may conduct the proceeding as they deem appropriate. Nevertheless, pursuant to article 1434 of the Mexican Arbitration Law, the parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

28. What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?

Mexico

In accordance with article 1441 of the Mexican Arbitration Law, unless otherwise agreed by the parties, when respondent does not present his answer or decides not to participate in a hearing or does not present evidence, the arbitral tribunal may continue with the proceedings and even issue an award based on the evidence that has been presented during the arbitration.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

29. What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?

Mexico

The Arbitration Law is not specific in this regard, allowing for different types of evidentiary. According to its article 1435, within the power granted to the arbitrators to conduct the proceeding in such manner as it considers appropriate, it is included the power to determine the admissibility, relevance, materiality and weight of any evidence.

The IBA Rules on the Taking of Evidence in International Arbitration and Prague Rules have served as guidance for arbitrators in Mexico but are not mandatory unless agreed by the parties.  

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

30. Will the courts in your jurisdiction play any role in the obtaining of evidence?

Mexico

Pursuant to article 1444 of the Mexican Commerce Code, the arbitral tribunal or a party with the approval of the arbitral tribunal, may request assistance from the courts in taking evidence.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

31. What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?

Mexico

Mexican law does not contain dispositions governing the production of documents. Nevertheless, it is a common practice in arbitration, which merely derives from the agreement of the parties. The parties can expressly agree the production of documents in the arbitration and the amplitude of such exchange will depend on what the parties have agreed on.

If there is no agreement regarding the production of documents, the arbitral tribunal may have authority to order the disclosure of documents base on dispositions of the rules of arbitration applicable according to the agreement of the parties. The authority of the arbitral tribunal is only over individuals and entities that are party to the arbitration but not over third parties.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

32. Is it mandatory to have a final hearing on the merits?

Mexico

A final hearing is not mandatory. Actually, according to article 1440 of the Mexican Arbitration Law, subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

33. If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

Mexico

According to article 1436 of the Mexican Arbitration Law, unless otherwise agreed by the parties, arbitrators may decide to have hearings or procedural meetings conducted elsewhere.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Award

34. Can the tribunal decide by majority?

Mexico

Article 1446 of the Mexican Arbitration Law stipulates that in cases where there is more than one arbitrator, every decision will be taken by vote of the majority. however, it also contemplates the possibility that the chairman arbitrator may decide procedural questions if so authorised by the parties or by all the members of the arbitral tribunal. Regarding awards, article 1448 of the Mexican Arbitration Law stipulates that if there is more than one arbitrator, the signatures of a majority shall be sufficient to issue a decision, as long as the reasons for the remaining arbitrators’ failure to sign are set forth. An award or decision rendered by majority decision is perfectly valid and the opinion of the dissident arbitrator has no effect on a potential challenge of an award.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

35. Are there any particular types of remedies or relief that an arbitral tribunal may not grant?

Mexico

In line with the grounds for setting aside an award stipulated in article 1457 of the Mexican Arbitration Law, arbitrators may not grant any remedies or relief for any controversies that are not provided for in the arbitration agreement or in cases where the decision exceeds the terms of the arbitration agreement, as well as when the object of the decision is not subject to arbitration or goes against the Mexican public order.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

36. Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?

Mexico

Mexican Arbitration Law doesn’t deal with dissenting opinions. Therefore, it can be interpreted that they are permitted. However, dissenting opinions are not common.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

37. What, if any, are the legal and formal requirements for a valid and enforceable award?

Mexico

According to article 1448 of the Mexican Arbitration Law, the awards shall be in writing and shall contain the signatures of the arbitrators. In the case of an arbitral tribunal, it is required the signatures of the majority of the arbitrators. The award shall contain the date on which it was rendered and the seat of arbitration. The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under article 1447.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

38. What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

Mexico

The Arbitration Law does not set forth a specific time limit for rendering the award. Regarding corrections and interpretation, the Mexican Arbitration Law specifies in its articles 1450 and1451 that this type of petitions shall be filed within 30 days from the notification of the award.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Costs and interest

39. Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

Mexico

Article 1452 of the Arbitration Law grants the parties the freedom to adopt, either directly or by reference to any arbitration institution rules, dispositions governing the costs of arbitration. According to article 1453 of the Arbitration Law, the arbitral tribunal shall fix the cost of the arbitration in the award. Article 1455 of said law provides that costs shall be bear by the unsuccessful party. However, the arbitral tribunal may distribute the costs between the parties if the arbitral tribunal deems it appropriate.

Likewise, when defining costs, article 1416 of the Arbitration Law states that costs of arbitration can include representation and legal assistance costs of the prevailing party if such costs were requested.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

40. Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

Mexico

Mexican law does not foresee this case. In Mexico, post-award interest does not run automatically, so for them to accrue it is required that the arbitral tribunal expressly granted them in the award. If parties have not agreed on a specific rate, it is customary to apply 6 per cent as a commercial moratorium interest rate.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Challenging awards

41. Are there any grounds on which an award may be appealed before the courts of your jurisdiction?

Mexico

The Mexican Arbitration Law follows the UNCITRAL Model Law on International Commercial Arbitration, so Mexico incorporated the same grounds for setting aside an arbitral award as the model law. In Mexico, arbitral awards are final and binding and not subject to an appeal.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

42. Are there any other bases on which an award may be challenged, and if so what?

Mexico

An arbitral award can only be set aside pursuant to article 1457 of the Mexican Arbitration Law after following the summary proceeding set forth in articles 1472 to 1476.

The grounds for vacating an arbitral award established in article 1457 are if:

(i) the party making the application furnishes proof that:

  • a party to the arbitration agreement was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the Mexican law; or
  • 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 present his or her case; or
  • the award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agreement, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or
  • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of the Mexican Arbitration Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with the Mexican Arbitration Law; or

(ii) the court finds that the subject-matter of the dispute is not capable of settlement by arbitration under Mexican Law; or the award is in conflict with the public policy of Mexico.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

43. Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

Mexico

No, even though an arbitral award is not subject to appeal, parties can’t waive the procedure for setting aside or of recognition and enforcement of an arbitral award. In Mexico, access to court is deemed to be a fundamental right that cannot be renounced nor restricted. Any agreement of the parties in this sense will be void under Mexican law.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Enforcement in your jurisdiction

44. Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

Mexico

The courts in Mexico have discretionary powers to decide whether or not to enforce an arbitral award that previously has been set aside in the court of the seat of arbitration. Article 1462 of the Mexican Commerce Code provides the grounds for refusing recognition and enforcement of an arbitral award. Section (I) (e) of the aforementioned article provides states as a ground for the refusal that the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which that award was made. The party resisting the enforcement of the award shall proof this ground for refusing the enforcement of the award.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

45. What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?

Mexico

In accordance with its favoured approach to arbitration policies, recent decisions from Mexican courts have confirmed the judiciary’s position in favour of party-autonomy and the enforcement of arbitration awards, by limiting the courts intervention and adhering to the causes described in Mexican Arbitration Law for setting aside any award.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

46. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

Mexico

States can resort to immunity defences of two types, jurisdiction and enforcement immunity. The first prevents the submission of one state to the jurisdiction of another, preventing the state from being judged by another, the second protects the assets and funds of a state from judgments or awards.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

Further considerations

47. To what extent are arbitral proceedings in your jurisdiction confidential?

Mexico

The Mexican Arbitration Law does not foresee a provision governing the confidentiality of the arbitration proceeding. Therefore, any confidentiality obligation shall derive from the agreement of the parties or the arbitration rules that have been agreed. However, since article 1435 gives the parties discretion to determine the arbitration proceedings, parties are free to agree on confidentiality terms to govern the arbitration. Any confidentiality agreement included by the parties in their arbitration agreement would also be binding to the arbitrators.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

48. What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?

Mexico

As in the previous answer, there is no confidentiality obligation under the Mexican Arbitration Law. So the evidence produced and pleadings filed in an arbitration will only be confidential if the parties agreed so. The agreement of the parties will determine if the evidence produced and pleadings filed can be used in other proceedings.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

49. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

Mexico

There are no mandatory rules of professional ethics in Mexico that apply to counsel or arbitrators acting in international arbitration. The only rule according to the Mexican Arbitration Law is that arbitrators must conduct themselves with impartiality and independence during the arbitration proceeding.

Counsel or arbitrators acting in arbitration who are members of the Mexican Bar Association shall observe the ethical code of such bar. However, Mexican law does not provide mandatary membership to a bar.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

50. Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?

Mexico

Despite the fact that there are no mandatory ethical rules, in Mexico most of arbitrators and counsel are guided by the IBA Guidelines on Conflicts of Interest in International Arbitration and the IBA Guidelines on Party Representation in International Arbitration. Likewise, in evidence matters, the IBA Rules on the Taking of Evidence in International Arbitration are an effective guidance. Parties shall expect the parties and arbitrators to conduct themselves in a highly manner in accordance with the international arbitral practices.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

51. Is third-party funding permitted in your jurisdiction? If so, are there any rules governing its use?

Mexico

Mexican law does not foresee third-party funding. Therefore, there are not subject to regulatory restrictions. However, certain rules may apply due to the arbitration rules the parties agreed on. For example, according to article 11 (7) of the 2021 Arbitration Rules of the International Chamber of Commerce, each party must promptly inform the Secretariat, the arbitral tribunal and the other parties, of the existence and identity of any non-party that has entered into an arrangement for the funding of claims or defences and under which it has an economic interest in the outcome of the arbitration.

Answer contributed by Victor M. Ruiz Barboza and Andrea Orta González Sicilia

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