Enforcement of Judgments 2023 Comparisons

In Mexico, there are several mechanisms via which the assets owned by the counterparty in a court case can be identified. Such information can generally be accessed through public records that are available to any person or, where it is in the hands of private parties (or even the State), through court orders. The following is a summary of the sources of information and the ways in which a private individual can access various types of information.

Public Information

Legal status of real estate

This information is available in the public property registries of each Mexican state. Each of these public registries contains information regarding the legal status of any real estate property, such as the owner or co-owners and the location of the property. Each public property registry allows users to ascertain what real estate an individual or legal entity owns, as well as the existence of third-party charges over such real estate or any other encumbrances.

Legal status of patents and industrial property records

The Industrial Property Gazette of the Mexican Institute of Industrial Property is the means of national communication through which information on patents and industrial property registrations is made public. This Gazette can be consulted through the Industrial Property Gazette Information System (Sistema de Información de la Gaceta de la Propiedad Industrial, or SIGA), which contains collected information dating back to 1873 on registered patents and – more importantly – their owners. This public system allows users to learn which patents and registrations an individual or legal entity owns, as well as the validity of such patents and registrations.

Legal status of rights related to copyright

Copyright has two facets protected by the Federal Copyright Law: moral rights and economic rights. The economic right of copyright is the recognition of the exclusive enjoyment of economic prerogatives and privileges by virtue of the creation of a literary or artistic work. The economic right of a literary work or creation is its value for pecuniary purposes.

The Public Registry of Copyright is the means by which all acts related to the ownership and alienation of the economic rights of authors are publicly recorded. Therefore, the Public Registry of Copyright, managed and administered by the National Copyright Institute, allows users to learn which individual or legal entity holds the economic rights to a literary work and to find out whether a person or legal entity holds any economic rights subject to seizure.

Legal status of commercial transactions and securities subject to public offering and intermediation

In Mexico, the Public Registry of Commerce is a universally accessible system through which acts of commerce in Mexican territory are made public and the creation of legal entities under Mexican law is recorded. This registry reveals a legal identity’s shareholders, as well as its main corporate acts and the amount of its capital stock. This information is relevant to the determination of the asset position of a party.

The National Securities Registry (Registro Nacional de Valores, or RNV) is a public means of dissemination administered by the National Banking and Securities Commission, via which the legal status of investment funds organised under the Investment Funds Law and securities of authorised issuers is made known. This registry enables individuals to identify securities issued (bonds, stock certificates, debentures, etc).

Legal status of assets subject to a guarantee

The Sole Registry of Personal Property Securities (Registro Único de Garantías Mobiliarias, or RUG) is a section of the Public Registry of Commerce through which financial institutions and creditors publicise the guarantees over movable assets they receive from their debtors. This registry provides information on the status of encumbrances on any movable property that may be subject to seizure. Although the main users are creditors and public notaries, the information contained in this registry is available to anyone.

National Transparency Platform

A final mechanism for the identification of assets, information on which may be accessed by any third party that submits a request for information, is the use of the National Transparency Platform. Although publicising the assets of legal entities is not the main purpose of the platform, it is possible to obtain information on legal relationships and assets derived from governmental relationships. The platform is administered by the National Institute of Transparency, Access to Information and Protection of Personal Data and enables the content of any government document (including public contracts) to be viewed – with special protection for sensitive information.

Confidential Information

Banking or financial information held by credit institutions

In accordance with the fundamental rights recognised in Mexican law, banking information is classified as confidential information, protected by a principle known as “banking secrecy”. This principle prevents individuals from immediately accessing information related to financial transactions processed by credit institutions. However, as it is one of the most valuable and relevant assets in judicial proceedings, there are regulated mechanisms for access to this type of information.

Article 142 of the Credit Institutions Law establishes that credit institutions are obliged to provide information related to their banking operations (eg, current account contracts, credit contracts, trust operations) when requested by the judicial authority via a court order –provided the owner of the information, settlor, beneficiary, trustee, or agent is a party to the court case. The request for this information is made through the National Banking and Securities Commission. This mechanism is extremely relevant because it allows individuals to:

• identify the existence of bank accounts (or similar accounts in regulated credit institutions) within Mexican territory; and
• know the balances of such accounts for the purposes of the judicial proceeding.

Information on foreign investment in Mexican companies

This information is not of a public nature – however, it is contained in the National Registry of Foreign Investments (Registro Nacional de Inversión Extranjera, or RNIE), which is administered by the Ministry of Economy and regulated by the Foreign Investment Law. Reliable information on the legal status of Mexican companies with foreign investment is registered in the RNIE, including:

• the name (or corporate name), nationality and status of the foreign investors in such companies;
• their percentage of ownership; and
• the approximate amount of total foreign investment, including the amount of paid and payable subscribed share capital.

A private individual may only obtain access to this information through a court order, mediated by judicial process. In such cases, the court must treat the information in a manner that safeguards the confidentiality of the entity.

Precautionary Measures

In Mexico, judicial proceedings in all matters – especially civil and commercial – provide for precautionary measures. These judicial tools allow judges to secure the subject matter of the litigation by:

• maintaining factual or legal situations, immobilising goods, assets or even legal acts;
• retaining goods through the means of provisional seizure; or
• retaining persons.

The purpose of these securing measures is – through a preliminary examination of the appearance of a good right of the subject to claim for payment of a benefit from another – to enable creditors to obtain the effective collection of the payment. The granting of this type of provisional measure during the process of issuing the judgment does not imply an advance or preliminary pronouncement on the nature of the judicial decision.

Under Mexican law, there are two types of judgments: interlocutory and final.

Interlocutory judgments are the procedural act by which the judge decides on some incidental issue that arises during the process, such as:

• jurisdiction of the judge;
• interim relief requested by the parties during the process; and
• inconsistency during a service of notice.

Final judgments are the culminating act by which the proceeding is terminated, in which the judge decides definitively on the subject matter of the litigation. Even though the judge makes a definitive decision regarding the dispute through the final judgment, it can only be executed once the parties have exhausted the available means of appeal within the time periods prescribed by law.

Judgments are categorised, based on their content, into the following classes.

• Declaratory judgments – these judgments contain only a judicial declaration on the existence or non-existence of a right or obligation and do not oblige the parties to deliver an asset or perform an action.
• Condemnatory judgments – these judgments resolve the conflict by imposing an obligation on one of the parties to give, to do or to refrain from doing something. It is important to mention that condemnatory judgments are often also declaratory, as the judge must first recognise the existence of a right and/or an obligation in order to impose an obligation to give, to do, or to refrain from doing something.
• Judgments forming rights – these judgments create, modify or extinguish a legal situation that is the subject matter of the dispute between the parties. They modify an existing situation as a way of resolving the dispute.

Secondly, the Federal Code of Civil Procedures defines a judgment as a judicial resolution that determines the merits of the case. The code recognises that the resolution of judicial disputes may be carried out through the following three mechanisms.

• Final judgment – a resolution issued directly by the judge that ceases the conflict between the parties, in accordance with the evidence provided to the court. It is understood that a judgment is “final” when a superior judicial body to the one that issued it cannot revoke the ruling.
• Transactions – the legal act by which the parties to a litigation grant mutual concessions and cease the conflict, giving such contract the effectiveness and authority of res judicata, without a direct intervention of the judge to resolve the dispute.
• Judicial or extrajudicial agreements – an agreement between two or more persons to create, transfer, modify or extinguish obligations in the form of a contract, which does not necessarily have mutual concessions.

New National Code of Civil and Family Procedures

Owing to the need to harmonise local and federal justice throughout Mexico, the National Code of Civil and Family Procedures (the “National Code”) was officially published in the Official Gazette of the Federation on 7 June 2023. This marks a significant change in the country’s legal landscape.

Once it comes into force, the National Code will repeal the Federal Code of Civil Procedure, as well as the civil and family procedural legislation of the federal entities. However, ongoing civil and family procedures at the time of the National Code’s entry into force will continue under the applicable legislation unless the parties jointly choose to adhere to the regulations of the new code. It is also worth noting that the accumulation of civil and family cases will not be allowed under the new legal framework.

The validity of the National Code does not imply the immediate repeal of the previously existing substantive and procedural laws. Therefore, the applicable substantive and procedural laws continue to be applied at both the federal and state levels in civil and family matters.

Therefore, for the purpose of the study at hand, the application of the Federal Code of Civil Procedure regarding national judgments remains in force.

The enforcement of judgments is carried out through foreclosure. Enforcement can be divided into procedural and extra-procedural. Procedural executions come from a jurisdictional authority where judgments, agreements and transactions are included. Extra-procedural executions arise from entities other than judges or courts, such as public notaries, mediators, or certain government agencies. However, prior to the execution of the judgment, the following conditions must be met:

• a final judgment must be obtained that cannot be modified by the judicial authority at a later date (res judicata); or
• the agreement or transaction must be approved by a jurisdictional authority and elevated to a final judgment (if applicable).

Court Order to Enforce Compliance/Specific Performance

Following the final judgment in a court case in Mexico, the procedure by which the original judge who first heard the dispute proceeds to the compliance stage and then – if the defendant fails to comply voluntarily with the ruling – enforces the final ruling is known as via de apremio (foreclosure). The process begins with obtaining a judgment that can no longer be modified. Once this is obtained, the winning party must ask the original judge to request voluntary compliance with the judgment by the condemned party.

In the event the losing party does not voluntarily comply with the judgment, the judge will proceed to initiate a compulsory enforcement stage. For this purpose, the judge may use any appropriate enforcement measure to force the condemned party to comply with the judgment (eg, fines, seizure or even arrest). As a rule, in ordinary civil and commercial court cases, if the parties allow more than five years without seeking execution of the judgment, they will lose their right to do so. In executive, oral, or abbreviated court cases, if the parties allow more than three years to pass without seeking execution, they will generally lose their right to do so.

If the winning party seeks the anticipated execution of the judgment without it being final and irrevocable, it must grant a bond or guarantee to cover the damages caused by the anticipated execution. This bond or guarantee will be delivered to the party that is subject to the execution in the event the condemnatory judgment is revoked. However, the judge has the power to deny an anticipated execution so as to avoid unnecessary use of judicial resources.

The authors note that there are special conditions that apply to the enforcement of Mexican judgments.

• Agreements or transactions – can only be executed once the judge hearing the case has approved them.
• Class actions – in class action proceedings governed by the Federal Code of Civil Procedures, the judgment is executed in individual stages for each member of the class.
• Mortgage foreclosure action – the execution stage of a mortgage foreclosure action is unusual because it necessarily concludes with a public auction of real estate that takes place before the court, in which any citizen may participate as a bidder and be awarded the mortgaged real estate.
• Commercial bankruptcy – the enforcement of the judgment recognising the creditors’ claims is carried out before the judge who heard the insolvency proceeding and is regulated by the Commercial Insolvency Law. If the merchant and its creditors have reached an insolvency agreement, the judge will verify that the merchant complies with such agreement. In the event that the company reaches the bankruptcy stage, the judge will verify the disposition of the company’s assets and the payment ordered to the creditors.
• Judicial bank liquidations – the enforcement of the judgment recognising the creditors’ claims is carried out before the judge who heard the judicial liquidation and is regulated by the Credit Institutions Law. In this bankruptcy proceeding, the dissolution of the credit institution is necessarily sought through the sale of assets with the participation of the Instituto para la Protección al Ahorro Bancario (the government agency in charge of deposit insurance).
• Criminal proceedings – the execution of sentences ordering the serving of a criminal penalty (eg, imprisonment) is regulated by an exclusive law (the National Criminal Execution Law) and carried out by judges specialised in the completion of sentences.

There is no average timeframe for the enforcement of a judgment delivered by a domestic judge, as various factors can modify the time – and the cost – on a case-by-case basis. However, the following considerations should be taken into account.

There are approximate procedural times for the intermediate steps between obtaining the judgment and its enforcement.

• Notice of the judgment to the parties – once a judgment has been rendered, it must be notified to the parties so they can proceed with its enforcement or challenge it, in the case of disagreement. The period for notification of a judgment may vary depending on the labour saturation of the jurisdictional body, as this notice is usually served at the address of the parties. However, the authors believe that this stage takes approximately one to three weeks to complete.
• Resolution appeal – once notified of the judgment, each party has the opportunity to appeal the judgment and have the decision reviewed by a superior court. The timeframe for challenging a judgment varies from nine to 12 days.
• Amparo proceeding – the parties may use the amparo proceeding, which is an autonomous proceeding in which a federal collegiate court reviews whether the final judgment respects the human rights of the parties. The amparo proceeding could last from six months to two years.
• Modifications to the final judgment – in the event the higher judicial body decides to modify the initial judgment upon resolving the challenge or amparo proceeding, the judge will have between three and 15 days to deliver a new judgment, which may be challenged again by the parties should new issues arise from this judgment.
• Voluntary compliance period – once the deadlines for the parties to challenge the final judgment have ended, the judge will give the loser a period of five business days to comply voluntarily with the judgment. Otherwise, the order for specific performance will be enforced.

The timeframe and costs for enforcing a judgment in each specific case will also be affected by:

• labour saturation of courts and judicial bodies;
• cost of legal counsel and expertise; and
• availability and use of online trial tools to expedite court proceedings.

Once the court issues the final judgment and the period for voluntary compliance granted by the judge to the condemned party has elapsed, different scenarios may unfold at the enforcement stage. This enforcement procedure or stage is the final phase of any judicial proceedings and its purpose is to use force to obtain compliance with the final judgment. This is why, depending on the content of the judgment, the authors can premise the following.

• In the event of a declaratory judgment, there will be no enforcement stage because declaratory judgements only contain a pronouncement on the existence of a right or obligation but do not oblige the parties to do or refrain from doing something.
• In the event that the judgment orders a personal obligation to do something, the judge will order the defendant to perform the obligated action immediately and the plaintiff may claim damages or proceed to the collection of the alternative penalty established in the judgment.
• In the event that the judgment orders a non-personal obligation, the judge will appoint a different person to perform the obligation, at the expense of the judgment debtor in the judgment or will proceed to the calculation and collection of damages – depending on the plaintiff’s choice.
• In the event that the judgment orders the signing of a document, the judge will sign the document on behalf of the defendant – without the need for their intervention – and it will have all the legal effects as though it had been signed by the defendant.
• In the event that the judgment orders the delivery of real estate, money, books, papers or any object/thing, the judge will make use of all the means of compulsion within their reach – such as the use of fines, seizure and withholding of goods, and even arrest for breach of court order – to achieve the payment of what is owed. The judge may grant a term of up to 60 days in which to vacate real estate.

Please note that, pursuant to case law issued by the Supreme Court of Justice and the collegiate courts in Mexico City, the suitable remedy against the resolutions in the post-judgment procedures for determining defendants’ assets is the amparotrial if:

• the resolution approves the total compliance with the ruling;
• the resolution confirms it is not possible to execute the ruling;
• the resolution is the last in the auction proceeding;
• the resolution(s) quantify non-liquid amounts to execute the ruling; and
• the resolution(s) directly affect human rights.

Enforcement is the mechanism available to the parties that obtained a favourable judgment in the event that the condemned party refrains from voluntarily complying with the judgment within the term granted by the judge. As such, the condemned party has three ways of preventing the enforcement of a judgment in which its assets are secured and taken to public auction:

• voluntary performance of the obligation;
• a transaction, compensation, or arbitral compromise, provided that it is requested 180 days after the final judgment becomes final; or
• a settlement between the parties that modifies the obligation contained in the judgment in favour of the winner of the judicial contest.

The person subject to the final judgment may only question or challenge the process of enforcing the judgment if the acts therein do not comply with the law or violate constitutional principles, such as privacy, confidentiality, or bank secrecy. However, through such challenge (appeal and amparo proceedings), the finality of the judgment and the existence of an enforcement procedure cannot be questioned – rather, only the guidelines issued by the judge to achieve its performance.

Mexico does not have a catalogue of judgments that are unenforceable. However, the judgment can only be enforced by the judge of origin – ie, by the judge who originally heard the dispute – except in cases of extinction or reassignment of judicial bodies. Additionally, in order to be enforceable, the judgment must be final – ie, the legal term must have elapsed without the parties having challenged the judgment or, if they have done so, the remedy must have been declared unfounded or insufficient by a final judgment. If it has been modified, only the content of the last decision delivered in the court case may be taken into account.

In Mexico, there is no central record of each judgment delivered by judges. On the other hand, when judgments order the seizure of real estate, such seizure must be registered in the corresponding Public Registry of Property. However, such registries do not register judgments – only property of a specific nature.

Mexico has ratified several international treaties regarding the enforcement of judgments, including:

• the Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards;
• the Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments;
• the Inter-American Convention on Letters Rogatory;
• the Convention between the United Mexican States and the United Kingdom of Spain on the Recognition and Enforcement of Foreign Judicial Judgments and Arbitral Awards in Civil and Commercial Matters; and
• The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.

Likewise, the national legislation in civil matters has adapted its internal framework to recognise the enforcement of judgments within national territory, as well as delimit the procedure and requirements. In this sense, it sets forth that foreign judgments, private arbitral awards of a non-commercial nature and jurisdictional resolutions will be executed by means of an enforcement. The ancillary proceedings to enforce a foreign judgment will be limited to examining the authenticity of the foreign final judgment and whether it must be enforced in accordance with the provisions of Mexican territory.

Among the necessary conditions for executing a foreign judgment, Article 571 of the Federal Code of Civil Procedures and Article 1347-A of the Commercial Code set forth the following requirements:

• the formalities established in the international treaties regarding letters rogatory to which Mexico is a party must have been complied with;
• they must not have been issued as a consequence of an action in rem;
• the jurisdictional authority that issued the decision must have competent jurisdiction and evaluate the matter according to the rules of international law that are compatible with the national legislation;
• the defendant must have been personally summoned;
• the decision must have res judicata status in the country in which it was rendered (alternatively, there must be no ordinary appeal against it);
• the action that gave rise to the requirements must not be the subject matter of a lawsuit that is pending between the same parties before Mexican courts and in which the Mexican court has taken a preventative action (or at least the letter rogatory to summon has been processed and delivered to the Ministry of Foreign Affairs or to the authorities of the state where the summons is to be served);
• the obligation to be performed must not be contrary to public order in Mexico; and
• the documentation must be properly authenticated.

In the realm of the enforcement of foreign judgments and arbitral awards, The National Code (see 2.1 Types of Domestic Judgments (New National Code of Civil and Family Procedures)) introduces significant contrasts to the Federal Code of Civil Procedure. These changes aim to harmonise the recognition of foreign judgments in Mexico, expand the jurisdictional authority’s options, and strengthen international judicial co-operation.

Therefore, it is essential for parties involved in the enforcement of foreign judgments to familiarise themselves with the provisions and procedures of the National Code. When the new code is implemented throughout the federal entities, it will be necessary to adapt legal practices and strategies to the changes introduced as a result.

In matters of a civil and commercial nature, including bankruptcy proceedings, the law imposes the same burden of exhausting the ancillary proceedings to enforce a judgment on the parties. Therefore, the approach to enforcing foreign judgments is comparable in each specific case.

Furthermore, it is important to highlight that Articles 1181 to 1191 of the new National Code provide for the recognition and enforcement of foreign judgments and present innovative approaches compared to the Federal Code of Civil Procedure. The main provisions are as follows.

• The new National Code establishes that the procedure for the recognition of foreign judgments will be governed by the provisions set forth in applicable international instruments and in the National Code itself. Furthermore, it is provided that the effects of such judgments will be governed by what is stated in the judgment, ruling or arbitral award. This provision emphasises the importance of international treaties in this matter and seeks to harmonise the recognition of foreign judgments in Mexico.
• The jurisdictional authority responsible for enforcing a foreign judgment will be the court of the debtor’s domicile or the court of the place where the assets subject to enforcement are located. This provision expands the jurisdictional options and aims to facilitate the enforcement of foreign judgments.
• Foreign judgments that do not require the recognition or homologation procedure for their enforcement will be recognised in accordance with international treaties and Mexican law. This implies a greater consideration of international treaties in the recognition of foreign judgments, thus strengthening international judicial co-operation.
• The new National Code provides requirements for a foreign judgment to have res judicata status and be enforceable in Mexico. These requirements include compliance with formalities provided for in the National Code, the jurisdiction of the foreign judicial authority, personal notification/service to the defendant, res judicata in the country of origin, and non-contravention of Mexican public policy. This provision contains more precise details of the requirements that must be met for the recognition and enforcement of foreign judgments.
• Article 1187 of the new National Code stipulates that the resolution of recognition or homologation must specify which part of the execution procedure may be carried out in ways that differ from those in Mexico, provided it does not violate fundamental principles and institutions of public order and human rights. This allows for greater flexibility in the enforcement of foreign judgments by adapting them to the specificities of the Mexican legal system.

There are four types of foreign judgments that cannot be enforced within Mexican territory.

• Judgments contained in illegal or improperly authenticated letters rogatory – in order for a judge to proceed to enforce a judgment, the letter rogatory sent by the foreign judge must comply with international standards and treaties on the matter.
• Judgments in violation of essential procedural formalities – although Mexican judges may not analyse the merits of a foreign judgment, they may oppose its execution if they detect a procedural violation that breaches the judgment debtor’s human right to a hearing and to a due defence in a court case.
• Judgments that breach Mexican law and order – likewise, Mexican judges are compelled to oppose the execution of a foreign judgment if the decisions contained therein are contrary to Mexican public order (ie, to the prohibitive or mandatory rules contained in Mexican laws or in the Constitution).
• Judgments involving actions in rem – if the foreign judgment deals with an action that disregards or modifies the Mexican real property regime, the judge must oppose its enforcement.

Requirements to Initiate the Enforcement Procedure

For the process of enforcing a foreign judgment to begin, the judge or court must issue a letter rogatory, to which the petitioner must attach:

• an authenticated or certified copy of the judgment, award or jurisdictional resolution;
• an authenticated or certified copy of proof that the essential procedural formalities (outlined in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments) have been complied with; and
• a translation into Spanish of all the authenticated documents.

Likewise, for proceedings within Mexican territory, the plaintiff must indicate an address for service of notice in the jurisdiction of the court before which it is requesting the enforcement of the foreign judgment.

Jurisdiction for Enforcement Proceedings

In terms of determining which court has the jurisdiction to enforce the foreign judgment, it will be sufficient to take into consideration the national address of the defendant or, where this is unknown/absent, the location of the defendant’s assets. A local judge or a federal judge may deal with commercial matters.

Procedural Stages

The ancillary proceedings to enforce a judgment will begin with a personal summons to the executing party and the executed party, who may present their defences and exercise their corresponding rights and – if applicable – offer the pertinent evidence. In this part of the process, it is important to reiterate that neither the court of first instance nor the appeal court may review the merits of the judgment or the reasons or grounds of fact or law.

Additionally, the decision delivered in the first instance may be appealed in both eventualities – ie, whether it denies or grants the execution. Questions relating to attachments, seizure of assets, appraisal, auction and other matters concerning the liquidation and enforcement of a judgment delivered by a foreign court will be resolved by the court in charge of the enforcement process. The distribution of funds resulting from the auction will remain at the disposal of the foreign judge delivering the judgment.

The length of time taken to enforce a foreign judgment – and the costs involved – will vary from case to case. Fundamentally, however, costs and waiting time will ultimately depend on:

• the workload of the corresponding courts; and
• the collection rate and accumulated experience of the legal counsel handling the specific case.

Any estimate of the cost of enforcing foreign judgments must also take into consideration the individual cost of the translation of the foreign court decision (if applicable). One way of reducing costs is to find an official expert translator recognised by the judge in charge of the judicial enforcement procedure. This will avoid the need to opt for a second translation if the corresponding judge does not recognise the expert nature of the translator.

Likewise, in terms of reducing times and costs, another viable alternative is the use of Mexico’s emerging online court case systems. In the authors’ experience, the federal online court case system is more efficient and contains more functions than those available in local jurisdictions. The adoption of an online court case system is a key means of achieving efficiency and low cost in a judicial proceeding, even more so if the enforcement of a foreign judgment is involved. It is possible for the parties to view notices, pleadings and judicial resolutions – as well as file initial pleadings and motions – through an online court case system known as the “Online Services Portal”, thereby avoiding unnecessary transfers to the court and greater agility for the filing of judicial motions.

The only grounds for challenging and opposing the enforcement of a foreign judgment are those contained in Articles 571 of the Federal Code of Civil Procedures and 1347-A of the Commercial Code, ie:

• that the letter rogatory sent with the foreign judgment to be executed does not comply with legal requirements;
• that the judgment deals with an action in rem;
• that the essential formalities of the procedure have not been complied with in the original court case;
• that the content of the foreign judgment is contrary to Mexican public order;
• that the documents sent are not authenticated;
• that the judgment is not final according to the laws of the country of origin; or
• that the action originating from abroad is not the subject matter of a lawsuit still pending within Mexican territory.

However, Mexican judges are prevented from analysing the merits of the case or the subject matter of the foreign judge’s decision. Likewise, the judgment by which the Mexican judge orders the execution or denies it may be challenged by means of an appeal by the non-complying party. Once notified of the decision, the party will have 12 days to appeal in civil matters and nine days in which to appeal in the case of commercial matters.

The Principle of Minimum Intervention in Mexican Judicial Practice

In recent years, the judicial criteria issued by Mexican judges and courts in commercial arbitration matters have been highly criticised, on the grounds that their interpretation strays far from the principle of “minimum intervention”. The principle of minimum judicial intervention (or minimum intervention) is based on Article 17 of the Mexican Constitution, which recognises ADR mechanisms and affords them a status comparable to centralised dispute resolution before the courts. Therefore, ADR mechanisms are not subsumed by the state jurisdiction but merely contribute to its execution and collection.

Although the latest legislative reform on commercial arbitration in Mexico – through which several provisions of the Commercial Code were amended to adopt the UNCITRAL Model Law on International Commercial Arbitration 1985 (the “UNCITRAL Model Law”) – established the principle of minimum intervention as a fundamental and guiding principle for jurisdictional function in commercial arbitration, the judicial criteria that have been developed around it hinder compliance with such principle. As an inherent consequence of the aforementioned improper judicial practice, the authors have identified the following main complications that litigants may encounter when appearing before a Mexican judge to request the recognition and enforcement of an arbitral award.

Five Main Complications When Enforcing an Award in Mexico

Simultaneous enforcement and annulment of arbitral awards

In Mexico, the simultaneous processing of an enforcement proceeding and a nullity proceeding with regard to the same arbitral award is not prohibited. This could potentially lead to contradictory rulings on the validity of an arbitral award by different Mexican judges.

It is important to note that Mexican law provides a mechanism for the joinder of both proceedings (enforcement and annulment). However, such procedure is only feasible if the hearing of pleadings has not been held in either proceeding. Several Mexican collegiate courts have established that, in these cases, it must be understood that the enforcement and nullity proceedings are autonomous and deal with a different issue.

The challenge to the enforcement of an arbitral award is not resolved immediately

The amparo proceeding is a judicial procedure aimed at the control of constitutionality, whereby a district judge reviews whether the challenged acts of the authorities are constitutional and protect the human rights of individuals. Otherwise, they must revoke such acts of authority. Previously, case law considered that the enforcement of an award could be challenged through a “direct” amparo proceeding – in other words, a single-instance amparo proceeding.

However, in a new case law, the Mexican Supreme Court of Justice determined that the enforcement of an award can be challenged through the “indirect” amparo proceeding and not the “direct” amparo proceeding. Under Mexican law, even though both types of amparo proceedings have the same purpose, the indirect amparo proceeding has two instances, whereas the direct amparo proceeding has only one instance (with exceptions).

The foregoing implies that the judgment delivered in an indirect amparo proceeding is not final and may be subject to a motion for reconsideration of an administrative decision. Consequently, this revision by the Supreme Court of Justice forces the parties to face a double-instance amparo proceeding. Instead of a single-instance amparo proceeding to obtain a final judgment for the enforcement of the award, the arbitrability of the matter depends on the arbitrability of the case.

The arbitrability of the matter depends on Mexican law

Before Mexican courts, the enforcement of the award depends on whether the subject matter of the dispute settled in the award can be arbitrated under Mexican law, even in the case of international commercial arbitration. This implies that, even if the dispute was subject to arbitration under the law of the forum where the arbitral award was rendered, the award will not be enforceable in Mexico if Mexican law does not allow the dispute to be subject to arbitration.

In this respect, Mexican law adopted a centralised position concerning the performance of arbitral awards in Article 1462 of Section II of the Commercial Code. This is due to the fact that an award’s capacity to be enforced depends on the arbitrability of the matter according to Mexican law – regardless of whether the award is included in a valid decision by the arbitral court. This creates a conflict when enforcing an arbitral award, as – despite the fact that an arbitral tribunal with competent jurisdiction has definitively issued the award – it cannot be enforced within Mexican territory unless the dispute is subject to arbitration under domestic law.

This limitation was included as a basis for the denial of awards by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”) – specifically, in Article V. However, the New York Convention states that the judge may refuse to enforce the award in these cases but does not have to (ie, it is not mandatory).

Uncertainty concerning the concept of public order

This complication when enforcing arbitral awards does not derive from the prohibition established in the Commercial Code, as the Mexican legislator sought to safeguard the fundamental rules of Mexican law. The problem derives from the lack of a clear and binding judicial criterion as to what falls under the undefined concept of “public order”.

The party opposing the enforcement of the award has in its hands a tool that has not been clearly defined, as the judge may interpret the concept of “public order” as broadly as possible, depending on the needs of the parties. The difficulty of handling this concept has caused problems in other jurisdictions, as well as Mexico. By way of an example, the Swiss Federal Tribunal has emphasised the complexity of this issue in Tensaccia SPA v Terra Armata RL (dated 8 March 2006).

Meaning of arbitration agreement in Mexican courts

It should be emphasised that Article 1416 of Section I of the Commercial Code establishes that the arbitration agreement is, specifically, a clause or independent agreement by which the parties decide to submit to arbitration all or certain disputes that have arisen or may arise between them. In this respect, the wording of the article is clear and firm.

One of the grounds for non-enforcement of an award that the Commercial Code sets forth – the origin of which derives from the New York Convention – is if the award contains decisions that exceed the terms of the arbitration agreement. Therefore, according to Article 1416, the most logical interpretation would be that the award should not be enforced if it concerns matters that are specifically not included in the arbitration agreement.

However, some courts have established that the judicial review of the concordance of the award with the arbitration agreement implies the power to review whether the decision of the arbitrators is also in accordance with the binding conditions of the legal relationship of the parties beyond the mere arbitration clause.

Summary

In conclusion, the aforementioned complications are not exclusive to Mexico. However, they have particular potential to violate the rights of the parties that decided to submit their dispute to arbitration. Their concurrence demonstrates the urgency for Mexican judges to adhere more closely to the principle of “minimum intervention” that prevails in arbitration matters.

Under Mexican law, the approach to enforcing arbitral awards varies depending on the type of award. The authors believe that there are four main categories into which arbitral awards can be classified, according to their subject matter:

• commercial;
• labour;
• consumer protection; and
• financial services user protection.

The main differences in their enforcement are as follows.

Domestic or International Commercial Arbitration Awards

The enforcement of arbitral awards in commercial matters (domestic or international) must be carried out through the bodies belonging to the federal judicial power or the state judicial powers in each state, through a specialised judicial proceeding (see 4.4 Process of Enforcing Arbitral Awards). The court responsible for the enforcement of a commercial arbitration award will be the court located in the jurisdiction where the arbitration takes place or, failing that, where the defendant’s address or assets are located (in that order).

For the enforcement of the award, Mexican commercial law only requires the presentation of the duly authenticated original award (or certified copy thereof) and the original arbitration agreement (or a certified copy thereof), which is in accordance with the New York Convention. If the award is in a language other than Spanish, it will be necessary to submit a translation by an official expert translator.

Labour Matters Awards

For the resolution of labour disputes, the Mexican Federal Labour Law allows the parties to settle the dispute through an arbitration award before the conciliation centres (Article 939). In this respect, owing to the 2019 amendment to the Federal Labour Law, new conciliation and ADR agencies were created – namely, the Federal Centre for Labour Conciliation and Registration and state conciliation centres.

Pursuant to Article 939 and Article 940 of the Federal Labour Law, the federal labour courts will be in charge of proceeding with the enforcement of such arbitration awards – enforcing them in the same way as a judgment delivered in a labour law court case would be enforced.

Consumer Protection Awards

Mexican consumer protection legislation – specifically, the Federal Consumer Protection Law – allows for a specialised procedure for the enforcement of awards delivered to settle consumer disputes. In this respect, it is important to emphasise that the arbitral awards referred to in this law are delivered solely and exclusively by the Federal Consumer Protection Agency (Procuraduría Federal del Consumidor, or PROFECO) or by the arbitrator appointed by the parties (Article 121).

The enforcement of this type of arbitral award must be carried out within 15 days following service of notice, unless otherwise expressly agreed by the parties. For the enforcement of arbitral awards issued by the PROFECO, the courts also have competence, but enforcement will be carried out through an executive proceeding as though the award were an enforceable title that entails execution – that is to say, through an abbreviated judicial procedure that allows for a provisional seizure.

Financial Services User Protection Awards

Finally, Mexican legislation on the protection and defence of users of financial services also provides for the issuance of an arbitration award as an alternative means of resolving disputes. The arbitration procedure is carried out by the regional, state or local delegations of the National Commission for the Protection and Defence of Users of Financial Services (La Comisión Nacional para la Protección y Defensa de los Usuarios de Servicios Financieros, or CONDUSEF). The amiable compositeur resolving the arbitration procedure is CONDUSEF itself – the arbitration awards of which will have the status of an enforceable judgment (pursuant to Article 73 of the Law for the Protection and Defence of the Financial Services User).

As to the issue in question, the enforcement of such awards is overseen by CONDUSEF, which may adopt all necessary measures to ensure the execution and collection of the final arbitral award, including enforcement measures. In the event that an award is made against a financial institution, CONDUSEF can appeal to the courts that have competent jurisdiction. In the authors’ opinion, such courts may be the courts in charge of commercial or administrative matters, depending on the subject matter of the arbitration award.

Pursuant to Mexican commercial law, certain domestic and international commercial arbitration awards will not be enforced by Mexican judges despite the initiation of the corresponding lawsuit. For the purposes of this chapter, awards are not enforced for the following reasons.

Defects in the Arbitration Proceedings

Awards will be unenforceable where defects in their structure, processing or issuance do not affect the decision itself but, rather, form the circumstances that led to the arbitral decision. The main distinctive feature of this category is that the defect that causes the award’s non-enforcement is not in the reasoning or decisions of the arbitrators but in the process or framework within which the decision was made.

Awards with pathological arbitration agreements

Awards may not be enforced if the arbitration agreement is defective. An example of a pathological arbitration agreement would be where one of the parties to the arbitration agreement was affected by some disability. Although the commercial legislation is not clear in this respect, the authors believe that judges must determine whether a person is incapable according to the law governing the contract or legal act in which such arbitration clause is included. Another example of a pathological arbitration agreement would be one that is not valid by virtue of the law governing the contract or legal act in which the arbitration clause is included.

Awards that violate due process

Awards will not be enforceable where there has been a procedural violation in the arbitration process, including violation of the essential procedural formalities (eg, service of notice, guarantee of hearing, and opportunity to prove and deliver a final decision).

Defects in the Arbitral Decision

This second category includes all those awards whose grounds for non-enforceability derive from the decisions made by the arbitrators. Although Mexican judges are prevented from reviewing the merits of the case, the following defects can be found in arbitral decisions.

Inconsistent awards

Arbitral awards will not be enforced where there is a disparity between the decision of the arbitral tribunal and any of the following:

• the arbitration agreement;
• the provisions of the legal relationship of the parties; or
• the petition filed with the arbitral tribunal.

Non-arbitrable awards

Awards are unenforceable where their subject matter cannot be subject to arbitration under Mexican law. Therefore, even if such award is in accordance with the law agreed upon by the parties, a Mexican judge may not enforce the award if it deals with any matter the arbitrability of which is prohibited by Mexican law.

Awards that violate the public order

Awards are unenforceable if their content is in violation of public order. An award may be in violation of public order – understood for practical purposes as violating prohibitive and mandatory provisions of Mexican law – but its subject matter cannot be arbitrated, and vice versa.

Annulment by Res Judicata

Awards that have been annulled or suspended by a judge in the country in which they were rendered may not be enforced under Mexican law. Even if a Mexican judge has annulled an award, the enforcement of which is also being processed by Mexican courts, such award will be unenforceable – given that, under Mexican commercial law, judges must suspend the enforcement of an arbitral award in the event that they are notified of its nullity. It is important to mention that courts in some countries have nonetheless taken the decision to enforce annulled awards in common law, in view of the pro-arbitration principle – for example, France (in the “Hilmarton” case), Austria (in the “Zdravilisce Radenska” case), Belgium (in the “Sonatrach v Ford” case) and the USA (in the “Chromalloy” case).

For the enforcement of an commercial arbitral award, the Commercial Code established a specialised procedure with few procedural stages. This is regulated by Article 1472 of the Commercial Code.

Requirements of the Initial Brief

The initial brief submitted by the plaintiff must indicate the following:

• the judicial authority to which it is addressed (see 4.2 Variations in Approach to Enforcement of Arbitral Awards (Domestic or International Commercial Arbitration Awards) for details of how jurisdiction is determined);
• the name and surname of the natural person (or, in the case of a legal entity, its corporate name or denomination) seeking the enforcement of the award, as well as an address for service of notice, which must be located in the place where the judge in charge of the case resides;
• in the case of Mexican promoters, a copy of the Sole Population Registration Code (Clave Única de Registro de Población, or CURP), the Federal Taxpayer Identification Code (Registro Federal de Contribuyentes, or RFC) and their official identification number;
• the name and surname of the natural person (or, in the case of a legal entity, its denomination) against which the enforcement of the award is sought, as well as the address where the defendant may receive a service of notice;
• the object claimed (ie, the judicial declaration that the award is enforceable and that the enforcement of the award will proceed);
• the facts preceding the enforcement of the award (eg, the origin of the dispute that led the parties to the arbitration proceeding, the procedure thereof, and the details of the award delivered);
• the legal grounds for enforcement of the award, which in this case are Articles 1471, 1472, 1473, 1474, 1475, 1476 and 1477 of the Commercial Code, specifying that the action is the specialised procedure for the recognition and enforcement of commercial arbitration awards;
• the value of the claim;
• the offer of evidence to accredit the proceeding to enforce the arbitration award; and
• a handwritten signature or, in the case of being filed digitally, an electronic signature recognised by the corresponding court.

Likewise, the evidence and documents in support of the action – along with enough simple copies of the claim and its annexes to be delivered to each defendant – must be attached to the initial brief. It is necessary for the admission of the claim that the plaintiff exhibits the duly authenticated original award (or a certified copy thereof) and the original arbitration agreement (or a certified copy thereof).

Procedural Stages

• Admission of the claim and service of notice – once the claim has been admitted, the judge will serve notice to the party against whom the arbitration award is being enforced, giving 15 business days to answer the claim.
• Evidentiary stage – once the claim has been answered, a period of 10 days will commence in which the evidence offered by the parties is presented in court. During this period, a hearing will be held in which the judge will analyse the evidence and, if witnesses are called, conduct the interrogation.
• Judgment – once the evidentiary stage is over, the judge will have a period of 15 ordinary days to deliver the final judgment declaring the enforcement or partial enforcement of the award or denying its enforcement. The judge will have the option of extending the period for an additional 10 days.

If the parties do not file an amparoproceeding against the final judgment delivered by the judge within 15 business days following service of notice, the judgment will become final – meaning that it may be enforced voluntarily or by force.

There is no clear parameter by which to determine the average time it takes enforce an award in Mexico nor the costs involved. However, several factors influence the cost and duration of the procedure.

• Judicial saturation – a saturated judicial system, which is the case for the Mexican judicial system, has a direct impact on delays and costs.
• Legal costs – the rates for legal services in Mexico are highly variable and procedural agility before the court will vary from office to office.
• Disagreement of the parties over the content of the arbitration award – when one of the parties does not agree with the arbitral award, that party could delay the enforcement proceeding by challenging each of the resolutions issued by the court.

In Mexico, judges cannot review the merits of the award. Once the arbitral tribunal issues the final award, the parties cannot challenge it through an ordinary appeal. However, the parties may challenge the judicial resolution that orders the enforcement of an arbitral award by the means of an indirect amparo proceeding, which has two instances – given that the judgment delivered therein may be subject to review by a collegiate court.

On the other hand, the parties have the option of invalidating the award through a nullity proceeding, without this allowing the judges to review the merits of the case. The provisions adopted in the Commercial Code for such a proceeding are equivalent to those contained in the New York Convention – ie, such court case will only consist of analysing the validity of the award but it is not an ordinary means to achieve its enforcement.

One Step Back: Competence-Competence

The principle of “competence-competence” has been embodied in Article 1432 of the Commercial Code since 1993. In spite of this, in 2006, the Supreme Court of Justice determined that arbitration agreements must be annulled by a judge rather than an arbitration court.

Today, such criterion of the Supreme Court is understood to have been superseded, as it was established in the Commercial Code in 2011 that any matter in which there is an arbitration agreement must be referred to arbitration at the request of any of the parties. This request can only be denied if there is a final decision declaring the nullity of the arbitration agreement or because the nullity, ineffectiveness or unenforceability of the arbitration agreement is notorious.