Mexico has a civil law legal system and is a federal state. For historical reasons, it has taken some influence from the US legal system, especially in matters related to constitutional law. Proceedings before Mexican courts traditionally followed an inquisitorial model, based mainly on written submissions, but influence from common law systems has become more notable of late; for example, in 2014 the Supreme Court introduced a particular notion of punitive damages, and in 2011 Congress amended the Federal Code of Civil Procedure to allow collective actions.
The inquisitorial model is also becoming a thing of the past, since Congress has passed several amendments to the procedural codes to establish adversarial proceedings conducted through both written submissions and oral argument, with an emphasis on the oral part of the proceedings. This new type of proceedings is already applied to criminal matters and, as of 2020, to most commercial disputes. This model has also been replicated in several states for civil disputes.
Mexico is a federal state and therefore the court system is made up of federal and local courts.
The federal court system has four tiers:
The states’ judicial systems are usually two-tiered, with first instance courts and appellate collegiate courts. However, amparo challenges can be submitted against judgments issued by the appellate courts.
Federal courts have jurisdiction over commercial disputes, but in cases dealing only with private interest, the claimant can choose to file a claim in either a federal or a state court.
Courts are organised by subject matter jurisdiction. It depends on the number of cases in each circuit or state, but there are usually civil/commercial courts, administrative courts, family courts and criminal courts.
Court filings are not open to the public; only interested parties have access to the judicial records. However, federal courts publish a redacted summary version of every ruling and a redacted version of the final judgment.
Parties can request the court to keep certain documents confidential, in which case they are not added to the record and access to them is controlled by a court clerk.
Only attorneys admitted to practise law in Mexico are allowed to appear as counsel before Mexican courts. To be admitted to practise law before a Mexican court, a lawyer must hold a law degree and a professional licence to practise law issued by the General Director of Professions of the Ministry of Public Education, and must register that professional licence before Federal Courts or the State’s Superior Court.
Other representatives can appear before a court, but only as attorneys in fact. Foreign lawyers cannot conduct cases before Mexican courts as an attorney of record.
Litigation funding by a third party is not regulated in Mexico. Since there is no restriction in the applicable laws, third-party funding is generally allowed.
Any type of lawsuit is available for third-party funding.
Third-party funding is available to both the plaintiff and the defendant, although it is more common to see third-party funding for plaintiffs.
Since there is no specific regulation regarding third-party funding, there are no minimum or maximum amounts.
Third parties usually fund attorneys’ fees and expenses related to factual and expert witnesses, as well as any bonds or other guarantees that may be necessary if an injunctive measure is obtained.
Contingency fees are permitted under Mexican law. There is no general regulation applicable to contingency fees, but lawyers are not allowed to buy the assets that are the subject of a trial in which they are intervening (Article 2276 of the Civil Code for the Federal District). This prohibition is sometimes interpreted to mean that an attorney cannot acquire any right disputed before a court when they are participating in the case, although there is no binding precedent on the issue.
There are no time limits by when a party to the litigation should obtain third-party funding. It could be done before the trial starts or at any point during the proceedings.
In general, Mexican law does not impose any rules on pre-action conduct, although there are some exceptions – for example, if the contractual right is not yet enforceable because the agreement did not establish a deadline for payment, in which case the party has to require payment judicially or before a notary public or two witnesses and wait 30 days before filing a lawsuit. However, this has more to do with the substantive right than with the procedural steps that must be taken before initiating a trial.
There are certain pre-trial motions (medios preparatorios) that the parties can file before they submit a claim, usually to prepare evidence or obtain relevant information for their case under very specific circumstances. For example, they may seek the examination of witnesses who are elderly or in imminent danger of dying, or the judicial inspection of assets.
In commercial disputes, the general statute of limitations is ten years (Article 1047 of the Commerce Code). The relevant exceptions include actions derived from a company’s by-laws or against the liquidators, which have a statute of limitations of five years (Article 1045 of the Commerce Code). However, other exceptions apply.
Other types of claims have specific statutes of limitations – for example, the statute of limitations for collective actions is three and a half years, starting from the day on which the damage was caused. Also, the general rule for claims based on tort is two years.
For commercial and civil disputes, if there is no forum selection clause agreed upon between the parties, the judge with jurisdiction to hear the case will be the judge of the place that the defendant selected to be judicially required to pay, of the place designated in the contract for the fulfilment of the obligation, or of the domicile of the defendant. If there are multiple defendants, the judge of the domicile of one of the defendants can exercise jurisdiction over all of them (Article 1104 of the Commerce Code and Article 156 of the Code of Civil Procedure for the Federal District). In civil matters, this may vary depending on the state legislation and on the type of action.
According to the Commerce Code, an initial complaint must contain the following information:
There is no opportunity to amend the complaint after it has been filed, unless there are supervening facts.
Service of process is done by an authorised court clerk called an actuario. The court clerk must go to the domicile of the defendant indicated by the plaintiff, and request to see the defendant, or their representative or agent. If the clerk cannot find the defendant or their legal representative, the clerk can serve a relative, employee or any other person that lives there, once they have confirmed that it is the defendant’s domicile.
Service of process includes a writ indicating the date and time of the notice, the kind of proceedings, the names of the parties, the court hearing the dispute, a transcription of the relevant court’s rulings, and the name of the receiving party. Copies of the complaint and documents submitted by the plaintiff are attached to that writ (Article 1390 Bis 15).
If the plaintiff does not know where the defendant lives, the court may request information from certain authorities or companies; if no domicile can be found, the court can order the service of process through publications in a newspaper (Article 1070 Bis).
Unlike other jurisdictions, service of process is a very formalistic and crucial part of judicial proceedings – entire proceedings may be declared null and void due to an omission when the defendant was served with process – so it is important to make sure that the court clerk properly fulfils all the applicable requirements.
According to the Code of Civil Procedure for Mexico City, if the respondent fails to file an answer to the complaint, the facts are considered admitted if process was served on the defendant or their legal representative. If process was served on someone else (for example, an employee or a relative), the facts are considered denied (Article 332 of the Code of Civil Procedure for the Federal District).
Even if the facts are considered admitted, the plaintiff still has to prove all the affirmative statements made in their claim, which serve as the basis of the action. The defendant also has the opportunity to offer evidence.
Collective actions have been allowed in Mexico since 2011. Federal courts have exclusive jurisdiction to hear this type of claim. Pursuant to the Federal Code of Civil Procedure, only class actions concerning the protection of collective interests or rights related to consumer relationships or environmental matters are allowed. Matters related to antitrust issues, financial services, product liability, and consumer redress are considered included within the scope of consumer relationships.
However, in order to file a collective action for damages caused to consumers in relation to monopolistic practices or unlawful acquisitions, it is necessary to first obtain a final ruling from the Federal Antitrust Commission, declaring the existence of that practice or acquisition.
The Mexican Congress decided to adopt the opt-in mechanism for collective actions, which means that the intent of a member of the class to join the collective action must be expressly declared. This consent can be declared during any stage of the proceedings or up to 18 months after the judgment issued is considered final.
Under Mexican law, there are no requirements to provide clients with a cost estimate of the potential litigation at the outset.
It is possible to obtain interim injunctions before a full trial, in the specific cases in which provisional remedies are available (see 6.1 Circumstances of Injunctive Relief).
A party cannot apply for early judgment on some or all the issues in dispute, nor for the other party’s case to be struck out before a trial or substantive hearing of the claim.
However, if the defendant confesses and agrees to the terms of the claim, the court shall summon the parties directly to the trial hearing in which a final judgment shall be rendered (Article 1390 Bis 19).
Additionally, if there is only documentary evidence, the court might decide to concentrate the whole procedure in the preliminary hearing (instead of appointing a new date for the trial hearing) and to enter a final judgment directly (Article 1390 Bis 37).
A case can also be concluded before trial if certain matters – such as lack of authority, lack of representation, lack of subject matter or territorial jurisdiction, lis pendens – are resolved in the preliminary hearing or in ancillary proceedings. Most issues that can lead to an early conclusion of a trial have to be alleged as a defence when the answer to the complaint is filed (Article 1127 of the Commerce Code).
No dispositive motions are usually made before trial, other than the ones related to the application for interim relief to maintain the status quo, typically consisting of the attachment of assets.
Any party who may be affected by the judgment has the right to be heard in the proceedings. In that case, the third party may become involved in the proceedings by being summoned by one of the parties or by appearing voluntarily before the court.
In a commercial or civil action, a defendant cannot apply for an order for the plaintiff to pay a sum of money as security for the defendant’s costs.
Courts do not impose costs on interim applications or motions. However, they can consider whether they are frivolous or only meant to delay the proceedings when they decide if one of the parties must pay the costs of the trial (Article 1082 of the Commerce Code).
In practice, the timeframe for a court to deal with an application or motion depends on the issue presented to the court. If it is related to defences such as lack of authority, lack of representation, lack of subject matter or territorial jurisdiction, obtaining a ruling usually takes between three and six months from the answer to the complaint being filed.
A party may not request for a motion to be ruled on an urgent basis, except for emergency interim measures (see 6.2 Arrangements for Obtaining Urgent Injunctive Relief).
Discovery is not regulated or allowed under Mexican law, which means that parties do not have the opportunity to depose potential witnesses or further investigate or develop the facts of the case once a complaint has been filed. The only exception that allows a party to obtain documents from the opposing party is if they identify the specific documents and declare to the judge that they are unable to produce them, asking the judge to issue an order against the party who has the document (Article 1061, Section III, of the Commerce Code).
The only way to obtain documents from third parties that are not named as a plaintiff or defendant is to make the same declaration as explained under 5.1 Discovery and Civil Cases, so that the judge can issue a production order against the third party. However, the scope is limited.
Discovery is not required, and is in fact not even allowed under Mexican law.
The only alternative to discovery, but with a very limited scope, is to start preparatory proceedings before the court, in which the plaintiff can request, for example, the examination of witnesses, a judicial inspection, a declaration from the opposing party, or the showing of a chattel. This type of preparatory proceedings is not used often, because the law imposes strict limits – for example, a party may only request to examine witnesses if they are elderly or at risk of death. Each party is required to exhibit all the documentary evidence to support their case with the complaint, answer to the complaint (and counterclaim, if applicable), and reply to the answer.
Mexican law recognises the concept of legal privilege, but its regulation is not as developed as in other countries. The applicable provisions are scattered throughout different acts and regulations, and the Federal Judiciary has issued very few precedents on the topic. This often presents challenges for determining the scope of legal privilege.
The Professions Law imposes a generic obligation on every professional to keep matters that are revealed to them by virtue of their profession confidential, and Federal Courts have held that attorney-client privilege is a consequence of the constitutional rights to privacy and defence. In fact, Procedural Codes protect those that receive information through the exercise of their profession and exempt them from testifying as witnesses in trial, and the Criminal Codes make the violation of professional secrecy a crime.
There is no specific statutory regulation of attorney-client privilege, so in principle the same obligations apply to external and in-house counsel. However, certain court precedents seem to suggest that attorney-client privilege is only applicable to external counsel.
A party that is ordered to produce a document by a judge may only refuse to disclose said document if it is considered to be privileged.
Under the Commerce Code, interim injunctions are only available on the following two grounds:
The Commerce Code provides a limitation on the type of remedies that can be granted, but some federal courts have held that the judge may grant other precautionary measures regulated in supplementary procedural laws if the circumstances to grant an interim measure are different from the ones described in the Commerce Code. Also, federal courts have stated that the two grounds established by the Commerce Code should be interpreted in an ample and flexible manner.
Mexican law does not expressly contemplate anti-suit injunctions to prevent parallel proceedings.
A party may request a motion for obtaining injunctive relief to be dealt with on an urgent basis, even without hearing the other party, if the circumstances support the urgent nature of the measure. In that case, courts usually rule on the issue within a week.
Once a trial has started, injunctive relief can generally only be obtained after notice of the request has been given to the respondent. However, Mexican courts have granted injunctive relief ex parte if the plaintiff can demonstrate a certain urgency that justifies not waiting to notify the opposing party. However, once the injunctive relief has been granted, the respondent still has the opportunity to be heard, and to submit challenges to reverse or modify the order.
The applicant can be held liable for the damages suffered by the respondent if the respondent successfully discharges the injunction and proves that he or she suffered damages. In fact, in order to obtain injunctive relief, the applicant must submit a guarantee for the potential damages caused to the party against whom the injunction will be issued.
Injunctive relief can be granted against the worldwide assets of the respondent. However, the enforcement of that relief outside Mexico would require international judicial assistance from the judges of the place where the assets are located.
In principle, injunctive relief is only granted against the parties to the dispute. However, in some cases the court can order third parties to co-operate – for example, it can order a bank to freeze banking accounts or a debtor of the respondent not to pay them and instead deposit the money before the court.
If the respondent fails to comply with the terms of an injunction, the court may impose different sanctions, which can range from a fine to administrative detention for contempt of court. Ultimately, the defiance of a court order may constitute the crime of judicial disobedience.
In practice, there are no jury trials in Mexico; they are all bench trials. An oral trial proceeding in Mexico has four stages: the pleadings stage, the preliminary hearing, the trial hearing and the final judgment.
To start an ordinary oral commercial action, and the pleadings stage, the claimant must file a complaint before the court, along with all the relevant documents and the names of any witnesses the plaintiff intends to call. Once the complaint is admitted, the defendant is served with process and has nine business days to file an answer and a counterclaim. The defendant must also submit all the documents to prove their defences and indicate the names of any witnesses they intend to call. The plaintiff then has three business days to respond, or nine days if a counterclaim was filed.
After the pleadings stage, the court shall appoint a date for the preliminary hearing, which is an oral hearing with the following purposes:
In addition, the judge, among other things, shall hear the procedural defences, receive evidence on such regards and rule on them (except for matters of lack of jurisdiction).
In the trial hearing, the court will process the evidence and then grant the floor to each of the parties to make their arguments. Then, the court shall enter its decision, briefly explaining orally the factual and legal grounds of the decision and the specific rulings.
These rules shall vary regarding special or summary proceedings.
In the preliminary hearing, the judge, among other things, shall hear the procedural defences, receive evidence on such regards and rule on them (except for matters of lack of jurisdiction). Additionally, the preliminary hearing works similarly to a case management hearing (see 7.1 Trial Proceedings).
In commercial matters, it should be remembered that parties can freely agree the proceedings under which they want their dispute to be heard, and therefore could establish a case management hearing. Parties usually follow statutory proceedings without agreeing on any modifications to the rules.
There are no jury trails in civil or commercial cases.
Any evidence that may convince the judge about the disputed facts is admissible; the scope is very general. The burden of proof rests with the party making an affirmative statement (Article 1194 of the Commerce Code).
All documentary evidence must be submitted with the complaint or the answer to the complaint or reply; otherwise, it will not be admitted, unless it is supervening. Witnesses and expert witnesses must also be identified by name in the complaint or answer to the complaint. In the preliminary hearing, the judge rules on the admissibility of the evidence, reviewing whether it is appropriate and whether the legal formalities for its offering were followed; for example, indicating the facts that the offering party intends to prove.
Expert testimony is permitted at trial, but only in cases in which ruling on the dispute requires special knowledge of science, arts or an industry. Each party can appoint an expert and prepare an interrogatory report for both experts to answer. If the reports are completely contradictory, the court may appoint a third expert witness.
The court may seek expert testimony itself if it needs guidance on a technical issue, because the Federal Code of Civil Procedure allows it to request any additional evidence to reach a more informed decision (Article 598 of the Federal Code of Civil Procedure).
In commercial proceedings, all hearings are public (Article 1080 of the Commerce Code). Other bodies of law, such as the Federal Civil Procedure Code, establish that the court will determine in which cases the hearings shall not be public (eg, in family matters or when one party is a minor).
Previously, judges were supposed to preside over every hearing, review the interrogatories for witnesses and experts, encourage the parties to reach a settlement, etc. However, in practice, judges often delegated much work to their staff and intervened only when there was a conflict over a procedural decision. Judgments are reserved to a later date.
However, in the new oral proceedings, which will apply to every commercial dispute from 2020, judges must be more involved in the case, as they personally have to preside over the hearings. Judgments are supposed to be notified at a hearing. However, in more complex cases, the judge shall suspend the hearing and appoint a later date to enter the final judgment.
Obtaining a first instance judgment in a typical oral commercial proceeding takes around five to six months on average from the complaint being submitted. The duration may vary depending on the complexity of the dispute.
Settlement agreements do not need to be certified or approved by the court. However, there are significant advantages of obtaining a certification of the agreement – mainly that the agreement will be authenticated and considered res judicata, and could be enforced like a final judgment.
Settlement agreements between the parties are not a matter of public record. Even if the settlement agreement is certified or approved by the court, it is not a document that is considered public information, and therefore only interested parties can have access to it. However, a specific provision must be included in the agreement in order for the document to be considered confidential, thereby imposing specific obligations on the parties.
Settlement agreements certified by a judge or an authorised mediator, under the Law of Alternative Justice for the Federal District, are enforced through an independent summary proceeding or by initiating the enforcement stage before the judge who originally heard the case. The proceedings are designed to be abbreviated and efficient, and injunctive measures are available.
In principle, a settlement agreement can only be set aside by filing a lawsuit asking a judge to declare the agreement null and void. The circumstances in which a settlement may be set aside are limited, because the law recognises settlement agreements as being fully enforceable. It would only be possible if the party seeking to set aside the settlement agreement alleges, for example, that there was fraud or violence, or that the person who signed the agreement had no powers of representation. The parties may jointly modify the settlement agreement at any time.
Successful litigants can obtain declarative judgments and orders for specific performance. The remedies available are very broad, and typically involve damages and lost profits.
Compensatory damages under Mexican law must be a direct and immediate consequence of a breach of contract or an illegal act (Article 2110 of the Civil Code for the Federal District). Pain and suffering damages (moral damages) are also available as a remedy. In 2014, the Supreme Court introduced a particular notion of punitive damages for certain specific cases.
A party may only collect interest based on the period before a judgment is entered, according to the interest rate agreed upon by the parties or the statutory legal interest rate that is applicable. Once the judgment is issued, interest keeps accruing until the respondent makes a payment. However, interest is not awarded on costs. Also, in certain types of actions, interest can only be awarded from the date the judgment was issued and onwards.
The mechanism to enforce a judgment depends on the nature of the decision. First, if the order refers to a monetary payment to the prevailing party, these decisions can only be enforced through the seizure of assets. That seizure can be made through attachment proceedings or through a new summary action, which is a separate trial and can be filed before a different court (Articles 400, 407 and 421 of the Federal Code of Civil Procedure).
If the decision involves an order against the losing party to do something that only they are capable of doing, such as executing a contract, the judge can sign the contract in lieu of the party if that party refuses to comply with the order (Article 421 of the Federal Code of Civil Procedure).
Finally, if the losing party is obliged to perform an obligation that someone else can do and they refuse to comply with the order, a third party can be designated to perform the obligation at the expense of the losing party (Article 421 of the Federal Code of Civil Procedure).
Foreign judgments are recognised and enforced in Mexico (Article 569 of the Federal Code of Civil Procedure). Mexico is a party to the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards, and accordingly foreign judgments are enforced, provided that:
Also, Mexico is a party to the Hague Convention on Choice of Court Agreements. If applicable, this Convention facilitates the enforcement of foreign judgments in a significant manner.
Under Mexican law, commercial oral judgments cannot be appealed.
In other specific cases (for example, summary proceedings), there might be only one level of appeal, unless the value of the claim is below a certain threshold. Appeals against an order issued by a district court go to a single-judge circuit court, and appeals against an order issued by a local first instance judge go to a collegiate court.
If it is not possible under the applicable law to file an appeal, or even after the appeal has been resolved, the parties can file a constitutional protection action (amparo), alleging violations of the Mexican Constitution.
An appeal against a final judgment must be filed within nine days of the judgment being notified to the party. An appeal may be filed by the losing party, by the wining party who did not obtain damages and lost profits, costs or other ancillary claim, or by an interested third party.
The appeal must be filed before the judge that issued the order, expressing all the grievances arising from the judgment. The judge then gives the opposing party the opportunity to make allegations, and finally sends the appeal to the superior court. Once the superior court receives the appeal, it confirms the admission and summons the party for a final judgment.
The appeals court may review any alleged violation of the applicable law. Typically, there is no re-hearing. If the appeals court determines that there was a violation that had an impact on the judgment, it may reassess the claims and the evidence produced, and issue a new judgment. However, if the appeals court considers that certain evidence shall be taken, it might order a re-hearing.
New issues or arguments that were not explored at first instance cannot be introduced at an appeal.
Courts cannot impose conditions on granting an appeal. When appeals are allowed under the law applicable to the specific type of proceedings, then the parties can exercise this right without any conditions.
The appellate court has limited powers, since it must rule only on the grievances exposed by the parties. However, if one of those grievances is enough to reverse the first instance judgment, the appellate court may study the entire record, reassess the evidence, and issue a completely new judgment.
There are no court fees or costs to file a civil or commercial lawsuit, and in principle each party must bear the costs of attorneys and other related expenses. However, the losing party is required to reimburse the prevailing party when the court considers that the losing party acted with temerity or bad faith, or if that party did not provide any evidence to justify his action or defence, submitted false evidence, lost a summary action, obtained two unfavourable identical judgments in the first instance and the appeal, filed improper claims or made unwarranted defences (Article 1084 of the Commerce Code). The prevailing party must prove all the costs with proper evidence during an ancillary proceeding. Also, depending on the applicable rules, costs may be awarded based on a percentage of the amount in dispute.
The main factors considered when awarding costs are whether the losing party provided any evidence, whether the action or defence was frivolous or unwarranted, whether there was any false evidence, and whether the first and second instance judgments against the losing party were identical.
Generally, once the judgment awarding costs is final, it accrues interest under the general 6% rate if it is under the Commerce Code (Article 362), or 9% if it is under the Civil Code (Article 2395).
Alternative dispute resolution is becoming more common in Mexico, especially because judges are supposed to encourage the parties to engage in some methods – mainly mediation. There have been substantial efforts to professionalise the practice – for example, a few years ago, the Superior Court of Justice of Mexico City started to train and certify mediators.
The most popular ADR method in Mexico is still arbitration, both domestic and international.
The Mexican legal system promotes ADR, and the Mexican Constitution expressly acknowledges ADR as a valid method to resolve disputes (Article 17 of the Mexican Constitution). Many procedural laws establish a conciliation hearing as part of the proceedings. For example, in commercial oral proceedings, the judge has express powers to mediate during the initial hearing (Article 1390 Bis 2 of the Commerce Code). Likewise, in civil proceedings, the judge and the conciliator have powers to mediate between the parties during the whole process (Article 55 of the Code of Civil Procedures for the Federal District). However, there are no sanctions for refusing ADR – costs are not even awarded against a party who refuses to participate in ADR.
In Mexico, institutions offering and promoting ADR are well organised. In arbitration, the Mexican Arbitration Centre (CAM) and the Chamber of Commerce of Mexico City (CANACO) are among the most important domestic institutions. In mediation, the better organised institution is probably the Alternative Justice Centre, which is part of the structure of the Superior Court of Justice of Mexico City.
The law governing commercial arbitration proceedings and the enforcement of arbitral awards in Mexico is Book Five, Title Four of the Commerce Code. This body of law incorporates the United Nations Commission on International Trade Law (UNCITRAL) Model Law on arbitration (1985), with only minor modifications. It is a federal law that applies in the whole country, making the regulation of arbitration consistent everywhere in Mexico.
Mexico is also a party to:
Under Mexican law, the following subject matters cannot be referred to arbitration:
Parties can file a petition to set aside an award within three months of notice of the award being given. The challenge can only be based on limited and specific causes that mirror the ones provided in the UNCITRAL Model Law, as follows:
The Commerce Code provides for a specific proceeding to enforce arbitral awards. The proceedings begin with a complaint, which the defendant can answer within 15 working days. After the response is filed, the court receives the evidence offered by the parties. After all the evidence is received, the court holds a hearing on the merits within the next three days. Lastly, the judge renders a final judgment. The proceedings to enforce an award usually take between 6 and 12 months.
The oral adversarial commercial proceeding fully came into force in Mexico in 2020. This proceeding was previously limited to small claims.
In addition, the Constitution was reformed in 2017, granting the federal Congress powers to legislate on civil and family procedural matters, which were previously reserved to each state. In May 2021, the Supreme Court of Justice issued a resolution ordering Congress to enact the corresponding legislation. However, at the time of writing, Congress has not yet discussed or approved a bill on the matter. This law will likely replicate the oral commercial proceeding.
There was a reform to the Judicial Branch of the Federation that went into effect in 2021 and implied certain changes to the administration of justice, with an impact on litigation. Many of the changes were of an administrative nature, related to the judicial career and the organisation and distribution of powers among jurisdictional bodies. However, the precedent system was also modified to establish that, under certain circumstances, a single precedent of the Supreme Court of Justice is binding for lower courts, unlike the previous system that required five precedents in the same vein on the subject or a contradiction of criteria.
The COVID-19 pandemic impacted litigation in two main ways. First, the courts were forced to close for a few months and only urgent matters were processed, which significantly hindered access to justice and meant that the proceedings that were pending and those that were initiated during the last year suffered delays.
Secondly, both federal and local courts were forced to transition to online trial processing in order to make personal court attendance unnecessary. Although there had already been an effort in this regard, the final necessary steps were taken and the success of the system was tested during the pandemic.
Gradually, over the course of 2022, Mexican courts periodically returned to in-person work. However, they have retained the computer platforms for the processing of trials and the Federal Judiciary Council expressly authorised the courts to continue to conduct hearings digitally, a decision that could make the delivery of justice more efficient.
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General Litigation in Mexico: Trends and Developments
The big question when the pandemic started was: "When will we return to normality?" Two years later, we feel closer to such a date, but the effects of COVID-19 still linger in our everyday lives. Aside from the pandemic, we are now living in a world affected by the Russia-Ukraine war, which changed global geopolitics and pushed back the hopes for a quick economic recovery. Economists mention the possibility of an imminent global recession in 2023, which, along with international and domestic issues, might mean that the return to normality is still far away.
At the time of writing, governments across the world have not been able to tame inflation. They have had to adopt aggressive monetary policies, like increasing interest rates, and other measures to protect consumer welfare and mitigate risks to food security. As always, unfortunately, inflation disproportionately affects those who have less.
The Mexican government has not been deaf to these problems, imposing several measures to mitigate the effects of inflation over the past year. Some measures have been useful, like the monetary policy adopted by the Bank of Mexico, price subsidies on fuels and a consistent tax discipline. Others are questionable, like banning new oil importation permits that could generate more activity in the sector, and some are just negative, like the decision to eliminate sanitary and phytosanitary controls to ease and reduce prices – allegedly – on the importation of food products.
The measures adopted by the government to tame inflation will be in force temporarily (ie, six to 12 months) but decision-makers can always adopt new measures or extend their application. Some of these policies will harm industrial chains while not necessarily taming inflation.
Public emergencies, national security, sovereignty and food security have always been complicated concepts. These concepts need to be vague so they can be defined case-by-case, but such flexibility also illuminates their worst aspects. Policy makers and members of Congress can abuse that vagueness to justify any type of measure. Decision-makers should be sensible enough to avoid falling into what Machiavelli defined as "the ends justify the means".
Mr López Obrador’s administration has had its share of controversial decisions. He has reduced transparency, accountability and the possibility of presenting judicial recourse by justifying his most polarising decisions under the tags of "national security", "public emergencies" and now "food security".
For instance, this administration evaded judicial control during the construction of Mexico City’s new international airport, also known as the "Felipe Ángeles Airport", which followed a controversial decision to cancel the new airport envisioned during Mr Peña Nieto’s administration, the construction of which was 32.45% complete. The same was true for the construction of the Tren Maya (Maya Train), a new rail line that will cross several states in the Southeastern part of Mexico to connect tourist spots despite serious environmental and safety concerns, and the construction of an oil refinery in the State of Tabasco that is in a zone prone to floods.
COVID-19, geopolitical circumstances and inflation have given the current administration the perfect formula to enact questionable decisions without the need to follow legal proceedings by justifying their need under the exception to act promptly to avoid or mitigate an emergency or for reasons of "national security".
Here is where the judicial branch has to step up and be completely objective when deciding on controversial decisions. The judicial branch has a historical responsibility to limit the powers of an unleashed administration and decide what is best for Mexicans.
Not all decisions have to be black or white, and past legal formulas will have to adapt to current circumstances. For example, the concepts of "public emergencies", "national security" and "food security" need to be scrutinised on a case-by-case basis, and courts will need to abandon deference theories that have protected controversial policies by the executive branch to ensure that those decisions do not continue to go unchecked.
The judicial branch has the opportunity to recalibrate checks and balances and limit the executive and legislative powers by enforcing the rule of law. Judges have the responsibility to support reasonable, prudent and useful measures by the government and to set limits or ban unreasonable or abusive policies and decisions, and the Supreme Court of Justice (Supreme Court) needs to go back to its roots and become a Court of Justice rather than a political actor.
Below are some examples of recent activity by the Supreme Court and federal courts that will define the role of the Supreme Court as the highest protector of the Constitution and that evidence the importance of having an independent and true arbitrator.
A new opportunity to define the hierarchy of the Constitution and the role of the Supreme Court
The Supreme Court will decide on two matters that could redefine the hierarchy of the Constitution and its own role as a constitutional tribunal. These cases will be of the utmost relevance in constitutional law and could set a standard to allow judicial review of constitutional provisions and, if needed, the possibility for federal courts to invalidate such provisions.
The object of the discussion – on Unconstitutionality Action 130/2019 and the appeal to amparo 355/2021 – relies on the constitutionality of automatic pre-trial detentions (ie, ex officio) included in the Constitution and laws. This constitutional and legal concept has been the subject of controversy because international courts have identified its incompatibility with human rights but, conversely, the Mexican Constitution provides a limited list of the felonies that are subject to an automatic pre-trial detention. In practice, this means that any person who is charged with any of the felonies included in the Constitution will be detained and remain in prison during the completion of the process to define their culpability, and that public prosecutors do not have to prove the need for or justify pre-trial detentions in these cases.
The contradiction between international human rights standards and the Constitution is evident. So to understand the relevance of this decision, it is important to recall first the actual interpretation of the hierarchy of the Constitution in the face of human rights and, second, the opportunity for the Supreme Court to set a new standard consistent with precedents by the Inter-American Court of Human Rights and the justices’ opinion on this regard.
First, the Federal Congress amended the Mexican Constitution in 2011 to include international human rights standards within the body of the Constitution. Such amendments include:
These amendments changed the traditional constitutional hierarchy that established that the Constitution was at the top of the pyramid, with international treaties beneath it. Following the reforms, the Supreme Court construed that the Constitution and international treaties on human rights are at the same level, and that any authority has to apply the provisions that benefit individuals the most. Any authority could apply human rights provisions directly from the Constitution or international treaties, and could refrain from applying provisions that contradict a human right without the need for a previous judicial decision.
However, this interpretation changed with contradictory Action No 293/2011, where the Supreme Court analysed the hierarchy of constitutional exceptions to human rights in the face of international treaties. In that decision, the Supreme Court decided that constitutional exceptions supersede international treaties. Therefore, the interpretation that the Constitution sits at the top spot in the hierarchy pyramid regained prominence.
The Supreme Court now has a new opportunity to decide on the hierarchy of human rights following recent decisions by the Inter-American Court of Human Rights declaring that non-justified and automatic pre-trial detentions violate human rights. The Supreme Court will have to decide whether it abandons the interpretation in case No 293/2011 and declare if constitutional exceptions are subject to judicial scrutiny. This case is of the utmost relevance because the Supreme Court will decide on two constitutional topics:
The Supreme Court began debating on this matter on 5 September 2022 but did not reach a consensus, and so decided to postpone its decision with a new opinion to reflect the position of most justices.
In such debate, Justice Luis María Aguilar presented an opinion that declared that pre-trial detentions breached human rights and thus presented the need to abandon previous hierarchy interpretations.
As expected, the debate was complex. While most justices decided that automatic pre-trial detentions breached human rights, they did not reach a consensus on the hierarchy of constitutional exceptions and the ability of the Supreme Court to analyse and decide on the "constitutionality" of constitutional provisions.
The justices’ positions may be summarised as follows.
Because of the lack of consensus, Justice Luis María Aguilar proposed to retire his opinion and draft a new one harmonising the arguments expressed by other justices to achieve consensus.
Mr López Obrador publicly criticised the opinion by Justice Luis María Aguilar because a decision in the sense of his opinion went against the current administration’s policies on public security, and because Mr López Obrador proposed to include tax-related felonies in the constitutional exceptions list.
It could be said that the decision by Justice Luis María Aguilar was right, because if justices voted on the matter, the case would have been dismissed and the decision to postpone the debate gives the Supreme Court the opportunity to resume the decision on the matter without political interference from Mr López Obrador. However, it remains unclear when Justice Luis María Aguilar will present a new opinion; this will probably happen once Mr López Obrador’s administration concludes.
During the past two years, modifications and amendments to laws and rules in the energy sector have been highly contested by permit holders. That tendency continues without a final decision by the Supreme Court or by Collegiate Tribunals at the time of writing.
In 2013, Articles 25, 27 and 28 of the Constitution were amended to open the energy sector to private investment, including electricity and oil and gas. Although this has benefited the sector and consumers, the current administration aims to strengthen the role and market power of state-owned enterprises in the electricity market, the Federal Commission of Electricity (CFE) and, in hydrocarbons, Petróleos Mexicanos.
This situation generated a wave of amparos by permit holders and the presentation of constitutional actions by Congress and the Mexican Antitrust Commission. The Supreme Court halted the decision on the amparos until it decided on the constitutional actions. The Supreme Court decided to dismiss those actions in April 2022 (more information below) and ordered the amparo proceedings to resume in October 2022.
In addition, Canada and the United States began a proceeding through the United States-Mexico-Canada Trade Agreement (USMCA) that could end with the imposition of trade sanctions against Mexico for discrimination against international companies in favour of the CFE.
The legal proceedings are far from over and will lead to one of the most relevant decisions by the judicial branch that could influence the USMCA panels and imminent international arbitration disputes.
That said, the application of the amendments to the Electricity Law and several amendments in the sector are still suspended. The judicial branch has stopped its application through several injunctions granted to permit holders. To address the inapplicability of the Electricity Law, Mr López Obrador proposed a constitutional amendment to include certain principles to favour CFE in the body of the Constitution, but Congress rejected this proposal in 2021.
Supreme Court decision on Unconstitutionality Action 64/2021
Unconstitutionality actions are abstract constitutional control mechanisms available to certain governmental entities. The legal standard to accept and initiate these types of actions does not require the plaintiff to prove that the challenged law has harmed it or that the law has been applied.
Unconstitutionality actions may lead to the invalidation of the challenged law. Because of their characteristics, unconstitutional actions are considered to be extraordinary means of constitutional control that require a qualified vote by the Justices of the Supreme Court to achieve such invalidation (ie, eight out of 11 justices). Unconstitutionality actions that do not obtain the qualified vote are dismissed; justices may nonetheless draft concurring or dissenting opinions.
Moreover, the law that governs unconstitutionality actions provides that the reasoning of the Supreme Court’s decision approved by at least eight justices will become binding precedent for federal and local judicial authorities. Accordingly, for decisions to become binding precedent, they must obtain a qualified vote, and the justices’ reasoning must be aligned.
Details of the decision
A minority in the Senate filed Unconstitutionality Action 64/2021 (Unconstitutionality Action) to challenge the constitutionality of several articles of the Electricity Law amended by Congress at the request of Mr López Obrador (Amended LIE).
On 5 and 7 April 2022, a plenary session of the Supreme Court held hearings to discuss and decide on the draft Unconstitutionality Action decision prepared by Justice Ortiz Ahlf. The opinion concluded that all the contested provisions of the Amended LIE were constitutional.
However, the Bench of the Supreme Court decided to declare the unconstitutionality of the following articles of the Amended LIE by six or more votes (without obtaining a qualified vote):
The Unconstitutionality Action as it relates to the provisions above was thus dismissed because a qualified vote was not obtained. The majority of justices who voted to declare these provisions unconstitutional found that they were unconstitutional because they violate fundamental rights to competition, free markets and environmental protection. Each justice’s specific reasoning will be known once their concurring and dissenting opinions are released.
The Bench of the Supreme Court also decided to declare the constitutionality of the following articles of the Amended LIE by six or more votes:
The constitutionality or presumption of constitutionality of a law is granted by the legislative proceeding that gives it origin. Therefore, by deciding on the Unconstitutionality Action, the Supreme Court of Justice only validates its constitutionality.
The effect of the Supreme Court's decision on ongoing amparos challenging the Amended LIE
The Supreme Court’s decision did not reach a qualified vote to declare the unconstitutionality of the Amended LIE. Therefore, the Amended LIE will continue to be seen as valid until its constitutionality is reviewed by another mechanism of constitutional control (eg, amparo trials).
The majority vote on certain provisions (whether to declare its unconstitutionality or validity) serves as a guide to anticipate the reasoning that courts, magistrates or justices will follow in the amparo trials. This is because arguments presented in the amparo trials are similar to the arguments that the Senate made in the Unconstitutionality Action.
Since only a simple majority is required in an amparo decision to declare that a law is unconstitutional, it is reasonable to expect that the Amended LIE provisions that were found to be unconstitutional by majority in the Unconstitutionality Action will also be seen as unconstitutional in the context of amparos. On the other hand, the Amended LIE provisions that were found to be constitutional by majority in the Unconstitutionality Action may be treated as valid in the context of amparo actions. To assess the consequence fully, however, the Supreme Court or Collegiate Tribunal’s assessment on legal standing and relativity principles (ie, particular or general effects of the amparo decision) will be relevant.
The Unconstitutionality Action decision does not affect the injunctions that the Specialised Courts have granted: because those injunctions are still in force, the executive branch cannot apply the Amended LIE.
On 16 April 2021, Congress enacted several amendments to the Telecommunications Law to create the Panaut, a registry containing sensitive data concerning the owners or users of mobile phones. Such amendments included provisions to bind telecommunications users to register sensitive information (ie, biometric information) with the Telecommunications Regulator; if the owner of a mobile line declined to provide its personal and biometric data, the carrier or mobile operator would have to cancel or deny service without the possibility of reconnecting the line. The amendment also allows the government to access the personal and biometric information of the owner or user without a judicial order.
The measure to create and maintain this registry goes against the constitutional right to privacy and the order to seek universal digital inclusion and to provide the telecommunication services with competence, plurality, continuity and universal coverage because it imposes barriers to obtaining telecommunications services. Thousands of telecommunications users challenged this decision though amparos, and a minority of the Federal Congress also presented an unconstitutionality action.
District Courts dismissed the amparos because telecommunications users were not yet affected by the Panaut and therefore lacked the legal standing to appeal. At the same time, the Supreme Court admitted the Unconstitutionality Action, granted an injunction against the application of Panaut and, ultimately, decided that Panaut breached several human rights.
Nine justices out of the 11 members of the Bench of the Supreme Court decided to invalidate Panaut. The justices in the majority decided that the national registry of mobile phone users is not consistent with democratic principles, and that Panaut was an abusive measure that had not justified its need in the face of the right to privacy.
Other upcoming Supreme Court decisions
For the rest of 2022 and 2023, the Supreme Court will have to decide on other landmark decisions that will define its role as Mexico’s maximum tribunal and reaffirm checks and balances, such as:
The Supreme Court will face some of its most challenging decisions in the years to come, and the justices will need to step up to confirm the role of the Supreme Court as a Court of Justice.
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